Compare and differentiate Restorative Justice from Retributive Justice.

What are the principles of retributive justice?

The principles of retributive justice include that it considers crime as an act against
the state and laws and believes that accountability equals punishment. Also, the goal is to
punish the person who committed the crime, and the process includes the state and the
individual and does not include those who were directly impacted by the actions of the
individual.

Retributive justice, response to criminal behaviour that focuses on the punishment of

lawbreakers and the compensation of victims. In general, the severity of the punishment is
proportionate to the seriousness of the crime.

Retribution is based on the concept of “lex talionis”—that is, the law of retaliation. At
its core is the principle of equal and direct retribution, as expressed in Exodus 21:24 as “an
eye for an eye.” Destroying the eye of a person of equal social standing meant that one’s
own eye would be put out. Some penalties designed to punish culpable behaviour by
individuals were specifically tied to outlawed acts. Branders who used their skills to remove
slave marks from runaway slaves, for example, had their hands amputated.

Under retributive justice schemes, it is also important that offenders actually be guilty
of the crime for which a penalty has been imposed. True deterrence doctrine, according to
the utilitarian philosophy of Jeremy Bentham, allows for the punishment of innocent
individuals if doing so would serve a valuable societal function (e.g., creating and
maintaining an image that crime is detected and punished so that others are deterred from
crime). That idea is repugnant to retributionists, who believe that punishment should be
meted out only to those who have broken laws. The value of retribution cannot be
cheapened by using it to compensate for inadequacies of the justice system.

Retribution also forbids the punishment of offenders who cannot be held responsible
for their actions. Insane or intellectually disabled individuals, for example, should not be
penalized for acts that result from mental illness or disability. In addition, acts that are truly
accidental, as well as those committed by children, are not subject to the same punishment
as those committed by adults who possess criminal intent. The reasoning is simple when
viewed through the lens of retributive theory. If individuals do not or cannot form mens rea
(i.e., they cannot freely choose how they act), they do not deserve to be punished for their
actions. As in the time of Hammurabi, however, victims are entitled to damages, because
causing harm—even in the absence of intent—carries the obligation of restoring one’s
victims.
History of retribution

It is difficult to know when retribution was first used as a philosophy of justice, but the
concept regularly recurs in many religions. There are mentions of it in several religious texts,
including the Bible and the Qurʾān. In the Christian tradition, for example, Adam and Eve
were cast out of the Garden of Eden because they violated God’s rules and thus deserved to
be punished. Many Christians believe sinners will suffer a fiery afterlife for their
transgressions. The Qurʾān discusses retribution by God for those who are disobedient or
wicked. Allah is specifically addressed as the Lord of Retribution in a selection that
discusses those who reject belief in him. The Buddhist Dhammapada mentions retribution as
following bad acts, and the Hindu Bhagavadgita ties retribution to bad karma.

Most legal scholars agree that restorative and retributive justice elements coexisted
for centuries in justice systems that recognized the value of victims and their recovery from
harm perpetuated by offenders. In 451–450 BCE, the Law of Twelve Tables was drafted by
a committee of Roman judges. Those laws signaled the end of private justice achieved
through blood feuds by confirming compensation as the accepted method of justice in
ancient Rome. In the Twelve Tables, restitution was the sanction of choice for most crimes,
and victim retaliation was tolerated only when attempts to obtain restitution had failed. In
many respects, the Twelve Tables indicated the beginning of state-involved justice.

Victims’ concerns eroded over time until the system was completely offender-
centered. By the mid-1800s, a few critics had begun calling for the reinstatement of
restitution, claiming that it was important for victims, but retribution remained the dominant
philosophy. Owing in part to the victims’ rights movement launched in the 1970s, the justice
system began to incorporate restorative justice initiatives. Although those initiatives have
been successful with juveniles and in certain types of cases, retribution is still employed in
serious cases.

WHAT IS RESTORATIVE JUSTICE?

Restorative Justice is a process through which remorseful offenders accept responsibility for
their misconduct, particularly to their victims and to the community. It creates obligation to
make things right through proactive involvement of victims, ownership of the offender of the
crime and the community in search for solutions which promote repair, reconciliation and
reassurance. Thus, the restorative justice process is actively participated in by the victim, the
offender, and/or any individual or community member affected by the crime to resolve
conflicts resulting from the criminal offense, often with the help of a fair and impartial third
party. Examples of restorative process include mediation, conferencing, sentencing/support
circle and the like. The restorative outcome is the agreement obtained as a product of a
restorative justice process. Examples of restorative outcomes include restitution, community
work service and any other program or response designed to accomplish reparation of the
victim, and the reintegration of the victims and/or offenders.

HOW WAS RESTORATIVE JUSTICE ADOPTED IN THE PHILIPPINES?

The Commission on Crime Prevention and Criminal Justice, of which the Philippines
is a member-country, through a draft resolution, recommended to the Economic and Social
Council of the United Nations Organization (UNO), the adoption of the “Basic Principles on
the Use of Restorative Justice Programs in Criminal Matters”. The said document is a
formulation of UN Standard in the field of mediation and restorative justice. The Philippines,
being a signatory member-country should ensure adoption of this resolution.

Consequently, the goal of the government is to establish a more enlightened and

humane correctional system that will promote the reformation of offenders and thereby
reduce the incidence of recidivism. This is in line with the applicable laws, rules, and policies
mandating this Agency to administer the Parole and Probation System in the country. As
such, the Parole and Probation Administration (PPA) is empowered to create innovative
policies, programs, and activities to facilitate the reintegration of its clientele into the
mainstream of society and consequently prevent the commission of crime. Therefore, PPA
adopts Restorative Justice as one of its rehabilitation programs which utilizes restorative
processes and aims to achieve restorative outcomes.

WHAT ARE THE EFFECTS OF RESTORATIVE JUSTICE AS A REHABILITATION

PROGRAM OF PPA?

a. Reintegration of the offenders to the social mainstream and encouraging them to assume
active responsibility for the injuries inflicted to the victims;
b. Proactive involvement of the community to support and assist in the rehabilitation of
victims and offenders;

c. Attention to the needs of the victims, survivors and other persons affected by the crime as
participating stakeholders in the criminal justice system, rather than mere objects or passive
recipients of services of intervention that may be unwanted, inappropriate or ineffective;

d. Healing the effects of the crime or wrongdoing suffered by the respective stakeholders;
and

e. Prevention of further commission of crime and delinquency.

HOW IS RESTORATIVE JUSTICE IMPLEMENTED IN PPA?

A. During the Investigation Stage

Information such as victims’ version of the offense, effect of victimization to their

lives, families, future, and plans, and victims’ appreciation on how the damage/harm inflicted
by the crime can be repaired and healed are gathered to serve as input in the post-sentence
investigation (PSI) or pre-parole/executive clemency investigation (PPI) reports prepared by
the investigating officer to be submitted to the Court and the Board of Pardons and Parole,
respectively. These data are vital in the conduct of restorative justice processes during the
supervision phase.

Soliciting stakeholders’ interest for their introduction to the restorative process

commences during this stage.

B. During the Supervision Stage

Restorative Justice Program is a part of the rehabilitation of the client which is

incorporated in the client’s Supervision Treatment Plan (STP). In applying the various
restorative justice processes for the client’s rehabilitation, the supervising officer observes
the following points:

a. The parties are brought within the program out of their own volition. Parties have
the right to seek legal advice before and after the restorative justice process;

b. Before agreeing to participate in the restorative justice process, the parties are
fully informed of their rights, the nature of the process, and the possible consequences of
their decision;
c. Neither the victim nor the offender is induced by unfair means to participate in
restorative justice processes or outcomes;
d. Discussion in restorative justice processes should be highly confidential and
should not be disclosed subsequently, except with the consent of the parties, and should not
be used against the parties involved;
e. Where no agreement can be made between the parties, the case is withdrawn
from the restorative justice process; and
f. In the event agreement is reached by parties, it is put in writing to give
substance/essence to the agreement. The failure to implement any provision of the
agreement made in the course of the restorative justice process is a basis for the withdrawal
of the case from the program.

WHAT ARE THE ROLES OF THE PROBATION AND PAROLE OFFICERS IN THE
IMPLEMENTATION OF RESTORATIVE JUSTICE?
A Probation and Parole Officer assigned to handle investigation and supervision caseloads
acts as restorative justice planner. As such, he/she undertakes the following responsibilities:

a. Identifies and recommends to the Chief Probation and Parole Officer (CPPO) potential
case for Peacemaking Encounter;

b. Conducts dialogue to explore the possibility of restorative justice process;

c. Coordinates/collaborates with responsible members and leaders of community for their

participation in the conference;

d. Serves as facilitator-strength in the conference;

e. Assists in healing process of stakeholders based on the Supervision Treatment Plan; and

f. Prepares casenotes reflective of restorative justice values and utilizing the following points:

g. Impact of crime and effect of victimization

h. Victim inputs and involvement opportunities

i. Offender opportunity to take direct responsibility for the harm inflicted on the victim and/or
the community.

A CPPO engages in the following responsibilities:

Approves cases for Peace Encounter Conference and issues office orders; and
Implements and monitors plans and agreements achieved during the conference and sets
direction to realize success of the process.

WHAT ARE THE PROCEDURAL SAFEGUARDS TO BE OBSERVED IN APPLYING THE

RESTORATIVE JUSTICE PROCESSES TO RESOLVE CONFLICTS ARISING FROM THE
CRIMINAL OFFENSE?
a. The clients must admit the offense to be eligible for the conference, and if possible,
they should be encouraged to take full responsibility;
b. A personal visit by the Restorative Justice planner may be necessary to solicit
interest and willingness of stakeholders to participate in the restorative process;
c. The victims’ preference for the time, date and place of the meeting should be given
greatest weight;
d. Restorative Justice planners should also get in touch with community strengths to
serve as facilitator like local officials, members of the Lupon Tagapamayapa or any
responsible and respected personalities in the locality;
e. A pre-conference meeting with the selected facilitators prior to the actual conduct of
peace encounter conference should be set to carefully plan for all the details, from
the sitting arrangements and refreshments to the box of tissue papers which
incidentally would let participants know that display of emotions is okay;
f. A pre-conference meeting could likewise be arranged separately with individual
stakeholders to explain the process and other vital details of the conference;
g. The Restorative Justice planner should ensure that everyone knows how to get to the
location site of the conference;
h. Facilitators should ensure that the conference shall be conducted without interruption
in a comfortable location and shall secure the safety of all stakeholders;
i. Stakeholders shall also be consulted relative to the composition of the panel of
facilitators. Any party may move to oppose the inclusion of persons by reason of
 relationship, bias, interest or other similar grounds that may adversely affect the
process; and
j. Indigenous system of settling differences or disputes shall accordingly be recognized
and utilized to conform with the customs and tradition of that particular cultural
community.

WHAT ARE THE RESTORATIVE JUSTICE MODELS THAT CAN BE APPLIED IN PPA?

Peacemaking Encounter

Peacemaking Encounter - is a community-based gathering that brings the victim, the

victimized community, and the offender together. It supports the healing process of the
victims by providing a safe and controlled setting for them to meet and speak with the
offender on a confidential and strictly voluntary basis. It also allows the offender to learn
about the impact of the crime to the victim and his/her family, and to take direct responsibility
for his/her behavior. Likewise, it provides a chance for the victim and the offender to forge a
mutually acceptable plan that addresses the harm caused by the crime.

As a community-based decision model, the Agency Peacemaking Encounter is being

implemented through the following processes:

a. Victim/Offender Mediation – a process that provides an interested victim an opportunity to

meet face-to-face his/her offender in a secured and structured setting or atmosphere, with
the help of a trained mediator, and engage in a discussion of the past offense and its impact
to his/her life. Its goal is to support the healing process of the victim and allow the offender to
learn the impact of his/her offense on the victim’s physical, emotional and financial
existence, and take direct responsibility for his/her behavior by mutually developing a
Restorative Justice plan that addresses the harm caused by the said offense.

b. Conferencing – a process which involves community of people most affected by the crime
– the victim and the offender and their families, the affected community members and
trained facilitators and community strength – in a restorative discussion of issues and
problems arising from an offense or coincidence which affects community relationship and
tranquility. Facilitated by a trained facilitator, the above parties are gathered at their own
volition to discuss how they and others have been harmed by the offense or conflict, and
how that harm may be repaired and broken relationship may be restored.

c. Circle of Support – a community directed process organized by the field office and
participated in by the clients, the Volunteer Probation Aides (VPAs) and selected members
of the community in the discussion of the offense and its impact. Within the circle, people
freely speak from the heart in a shared search for understanding the incident, and together
identify the steps necessary to assist in the reconciliation and healing of all affected parties
and prevent future crime or conflict.
In the Agency, the circle of support is facilitated by trained Probation and Parole Officers,
Volunteer Probation Aides or selected community leaders who offered their services free of
charge to serve as facilitator or keeper.

In implementing this process, the probation and parole officer should be the facilitator who is
sensitive to the needs of the victim. Likewise, the probation and parole officer should exert
effort to protect the safety and interest of the victim.

WHAT ARE THE OUTCOMES OR INTERVENTIONS WHICH CAN BE AGREED UPON

DURING THE RESTORATIVE JUSTICE PROCESS?
As a result of the restorative justice process, the following outcomes or interventions may be
agreed upon by parties in a Restorative Justice discussion, such as, but not limited to:

A. Restitution - Restitution is a process upon which the offender accepts accountability for
the financial and/or non-financial losses he/she may have caused to the victim. Restitution is
a “core” victim’s right which is very crucial in assisting the redirection of the victim’s life.
Part of the conditions of probation as imposed by the Court is the payment of civil liability to
indemnify the victim of the offender, and to inculcate to the offender a sense of responsibility
and obligation towards the community.

Consequently, the probation and parole officer should see to it that the offender complies
with this condition.

B. Community Work Service - Community Work Service, whether imposed as a condition of

offender’s conditional liberty or integral part of his treatment plan, should be purposely
motivated to make the offender realize that he/she incurred an obligation to make things
right. In its application, the offender can be subjected to perform work service measures,
including, but not limited to any of the following:

1. Mentoring and Intergenerational Service – offenders will develop their nurturing

needs thru caring for other people; example: with senior citizens, with
orphanages, or with street children.

2. Economic Development – to link directly with the business project; examples:

cleaning downtown area, tree planting, maintenance of business zones, housing
restoration, garbage and waste management, cleaning of esteros, recycling,
construction, repair of streets, and the like.
3. Citizenship and Civic participation - experiential activities which involve solving
community problems; examples: puppet shows that showcase values, street
dramas, peer counseling.

4. Helping the Disadvantaged – this will enhance offender’s self esteem; examples:
assist handicapped, assist in soup kitchen, tutor peers, visit the aged in jail and
hospitals.
5. Crime Prevention Project – examples: Brgy. Ronda, giving testimony to the
youth.

The probation and parole officer should ensure the adoption of these community work
services to facilitate the reintegration of the offender in the community.

C. Counseling (whether individual, group or family)

It will enhance client’s interpersonal relationship and it will help him/her become more aware
of his/her shortcomings/weaknesses. This will also help him/her overcome painful
experiences that drove him/her to commit a crime/ offense.

D. Attendance to trainings, seminars and lectures

E. Participation in education, vocation or life skills program

F. Group Therapy Session - An intervention which provides recovering drug dependents or

those with serious behavioral problems an opportunity to discuss their problems.

G. Spiritual development session/faith-based session

H. Submission to psychological/psychiatric assessment.

I . Submission to drug test/drug dependency examination

J. Attendance to skills training/livelihood assistance program

K. Marital enhancement program

L. Written or oral apology

M. Submission to family therapy session

This session aims to develop healthy personal relationship within the family and to
establish open positive communication between family members and significant others.
Family members should be oriented in their individual responsibilities and roles.

N. Confinement in Drug Treatment Rehabilitation Center Including Aftercare

What is the difference between retributive and restorative justice?

Retributive justice focuses on assigning consequences to those individuals who have
committed a crime. Restorative justice focuses on repairing the harm done by the
perpetrator and rebuilding that person's relationship with the victim and society.

DISTINCTION

RETRIBUTIVE JUSTICE RESTORATIVE JUSTICE

What law was broken? What is the harm resulted from the crime?
Who broke it? What needs to be done to repair the harm?
How shall offenders be punished? Who is responsible for repairing the harm?