Restorative Justice

Corporate and white collar crime have landed on the front pages of the nation's agenda-setting newspapers.

Yesterday, [June 2--Ed.] the New York Times ran a front-page article reporting that the last decade has seen "a marked increase in accounting and corporate infractions, fraud in health care, government procurement and bankruptcy."

Maybe. Maybe not. We don't know.

One reason we don't know is that while the federal government tracks street crime through the Federal Bureau of Investigation's yearly "Crime in the United States" report, it refuses to compile a similar report for corporate and white collar crime.

It could just be that the press and prosecutors are finally noticing, in the wake of Enron and Andersen and Global Crossing, what has been true for most of this century--that corporate and white collar crime inflicts far more damage on society than all street crime combined. And yet, the nation's prison system is filled with street criminals.

We are tough on street criminals. We engage in negotiations with corporate and white collar criminals. Should we level the playing field by putting more white collar criminals in prison?

Maybe. Maybe not. What about leveling the playing field by taking more seriously the idea of negotiating with corporate and street criminals?

This is an idea touted by John Braithwaite, a professor at the Australian National University in Canberra, Australia, considered to be one of the world's premiere corporate and white collar criminologists. In his most recent work, Restorative Justice, Responsive Regulation (Oxford, 2002), Braithwaite comes down hard on retributive justice. It doesn't work for street crime.

And, he says, it doesn't work well for white collar crime. Braithwaite argues that throwing people in prison because they deserve it is a failed criminal justice policy.

For all the wrong reasons, says Braithwaite, corporate crime enforcement is restorative, while street crime enforcement is retributive.

"Some of us began to wonder whether we were wrong to see our mission as making corporate crime enforcement more like street crime enforcement through tougher sanctions," Braithwaite writes. "Instead, we began to wonder whether street crime enforcement might be more effective if it were more like corporate criminal enforcement."

What does Braithwaite mean by retributive justice?

"That you ought to punish wrongdoers because they deserve to be punished," he says. "Retributive justice is the notion that you respond to hurt with more hurt. Or as Nils Christie says, when pain has been caused by crime, you fight back with another spoonful of pain, as if that is a sensible response. It often turns out not to be a sensible response, because you get into a vicious spiral of hurt begetting hurt. Whereas restorative justice is an attempt to create the opposite dynamic of healing begetting healing."

So, even in the case of the most egregious street crimes, bringing victims and perpetrators together, along with their family members and loved ones, is the more effective policy.

Structured conversations, overseen by government authority and requiring a genuine showing of remorse by perpetrators, will often leave victims feeling more satisfied that justice has been done, and criminals less likely to commit new crimes, he says.

Restorative justice works well for corporate crime, too, he says. Braithwaite grew up in Ipswich, Australia, a coal mining town where a number of his friends suffered very serious injury and some were killed in the mines.

Regulatory conversations occur after coal mine disasters. How many of us could have done things that could have prevented the disaster from happening? What can we do to prevent recurrence?

That intimacy of conversation joins the stakeholders in a serious criminal offense in a community of sorrow over what has happened, he says.

"That can be a constructive, preventive process, where you get much more genuine commitment to doing the things that need to be done to prevent more crime of that sort from occurring in the future," Braithwaite says. "That is what restorative justice is seeking to cultivate. It is seeking to bring offenders to a position of remorse."

A system of restorative justice, he cautions, should be backed up by systems of deterrent and incapacitative justice, when it is apparent restorative approaches will fail. But in most cases, he says, the restorative approach is the appropriate one.

Braithwaite says that a restorative justice system would empty the prisons--except for recidivist white collar or street criminals who threaten bodily harm or who obstinately refuse to abide by the law.

Braithwaite says that restorative justice works at all levels--from the post-apartheid Truth and Reconciliation Commission in South Africa, to the 2,000 to 3,000 police-sponsored restorative justice conferences that have taken place in Canberra, Australia, where Braithwaite lives and works.

One thing is clear. For the sake of fairness, the playing field needs to be leveled. Let's either apply retributive justice evenly--against white collar and street criminals alike--or let's give restorative justice a try across the board.

The current double standard system of justice--applying retribution to street criminals while being responsive to the needs of corporate and white collar criminals--has got to go.

Russell Mokhiber is editor of the Washington, D.C.-based Corporate Crime Reporter. Robert Weissman is editor of the Washington, D.C.-based Multinational Monitor. They are co-authors of Corporate Predators (Monroe, Maine: Common Courage Press; see http://www.corporatepredators.org). To subscribe to weekly corp-focus e-mail service, send an e-mail message to listproc@essential.org with the following all in one line: subscribe corp-focus 'your name' (no period).

(c) Russell Mokhiber and Robert Weissman