8 Mapping American Criminal Law Restorative Justice as an Adjudicative Pro­cess A number of states have in one way or another expressed the importance of what some have termed “restorative justice,” which emphasizes restoring the offender to the community by encouraging the offender to repair broken relationships and satisfy debts, particularly ­ t hose caused by the criminal con- duct. This may be expressed as “restoration,”28 “healing,”29 “restitution,”30 or simply “restorative justice.”31 However, restorative justice is not a distributive princi­ple for criminal lia- bility and punishment but rather an alternative adjudication and sentencing pro­cess, one which commonly involves bringing together the offender, the vic- tim, their ­ f amily and friends, and members of the community to decide or recommend an appropriate disposition of the case. ­ T here are a ­ g reat variety of restorative pro­cesses, some involving larger groups and some smaller groups. What they have in common is an open discussion, out of the glare of official court rules, where the entire group—­ s ome form of this pro­ c ess is called a “sen- tencing circle”—­can try to develop an appropriate disposition that ­ will help to both reintegrate the offender and make ­whole the victim. Such restorative pro­cesses can be very useful and effective, but they are not “distributive princi­ p les” for criminal liability and punishment. It is rather the shared judgments of justice of ­ t hose ­ p eople in the sentencing circle that ­ will shape the disposition, not any sort of articulated princi­ple.32 As a practi- cal ­ m atter, restorative pro­ c esses are likely to generate results that track a princi­ ple of empirical desert: the empirical evidence is clear that ordinary ­people think about criminal liability and punishment in desert terms,33 but nothing in the restorative pro­cesses typically demands adherence to this or any other distributive princi­ple. Variations on a Desert Distributive Princi­ple and Related Rules Ordinary ­ p eople’s strong support for a desert distributive princi­ple may be part of the explanation for why the American Law Institute (ALI) approved the first-­ever amendment to its Model Penal Code in which it dropped the approach of its original 1962 draft that had encouraged states to consider a laundry list of distributive princi­ples. The Model Penal Code was extremely influential and became the basis for recodifications in three-­quarters of the states in the de­cades following its promulgation. It is the original approach of the Model Penal Code that prob­ably accounts for the range of distributive princi­ples cited by so many jurisdictions, as represented in Map 1A. In its 2007 amendment, however, the Model Penal Code rejects this laundry-­list approach in ­favor of a revised Section 1.02(2) that sets desert as a dominant distributive princi­ple that can never be ­ violated.34
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