Goodbye to Hammurabi: Analyzing the atavistic appeal of restorative justice

A recent innovation in criminal justice, the restorative justice movement h as serious implications for the relationship among crime, race, and communi ties. Restorative justice, which sprang up in the mid-1970s as a reaction t o the perceived excesses of harsh retribution, features an active role for the victims of crime, required community service or some other form of rest itution for offenders, and face-to-face mediation in which victims and offe nders confront each other in an effort to understand each other's common hu manity. This article questions whether restorative justice can deliver on its promi ses. Drawing on social science evidence the author shows that the informal setting in which victim-offender mediation takes place is apt to compound e xisting relations of inequality. It also forfeits procedural rights and shr inks the public dimension of disputing. The article compares restorative ju stice to the traditional criminal justice system, finding that they both su ffer grave deficiencies in their ability to dispense fair, humane treatment . Accordingly, it urges that defense attorneys and policymakers enter into a dialectic process that pits the two systems of justice, formal and inform al, against each other in competition for clients and community support. In the meantime, defense attorneys should help defendants find and exploit op portunities for fair, individualized treatment that may be found in each sy stem.