Taking Restorative Justice Seriously

Those seeking to reduce mass incarceration have increasingly pointed to restorative justice—an approach that typically brings thoseaffected by a criminal offense together in an attempt to address the harmcaused by the offense rather than to mete out punishment. This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system. For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system? Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful restorative process? Can restorative justice be successfully used in cases where the victim cannot participate or there is no identifiable victim, as in drug offenses? Will the process be coopted by bureaucratic impulses? Restorative justice skeptics may ask whether applying a restorative approach to the most serious crimes will jeopardize the deterrent value of criminal law and lead to outcomes that are vastly disproportionate. Those both inside and outside the movement will ask whether restorative justice can be implemented in a way that protects defendants’ procedural rights and is racially equitable. I explore the choices and trade-offs that would be involved in expanding restorative justice to significantly reduce incarceration. I argue that restorative justice can be expanded without significant adverse impacts on due process, racial equity, and proportionality. At the same time, vastly expanding restorative justice entails compromising some keyfeatures of restorative justice. I suggest that the disadvantages of expansion are significant, but are outweighed by the moral imperative to experiment with alternatives to mass incarceration

Transitional Justice in Ancient Athens: A Case Study

This article presents our first well-documented example of a self-conscious transitional justice policy - the classical Athenians’ response to atrocities committed during the reign of the Thirty Tyrants - as a case study that can offer insight into the design of modern transitional justice institutions. The Athenians carefully balanced retribution and forgiveness: an amnesty protected collaborators from direct prosecution, but in practice private citizens could indirectly sanction even low-level oligarchic sympathizers by raising their collaboration as character evidence in unrelated lawsuits. They also balanced remembering and forgetting: discussion of the civil war in the courts memorialized the atrocities committed during the tyranny, but also whitewashed the widespread collaboration by ordinary citizens, depicting the majority of the populace as members of the democratic resistance. This case study of Athens’ successful reconciliation offers new insight into contemporary transitional justice debates. The Athenian experience suggests that the current focus on uncovering the truth may be misguided. The Athenian case also counsels that providing an avenue for individual victims to pursue local grievances can help minimize the impunity gap created by the inevitably selective nature of transitional justice

The Future of Community Justice

In recent years, a series of crime control practices known collectively as community justice have reintroduced rehabilitation and discretion to control certain minor crimes. This parallel system for approaching minor crime has flourished, even as the mainstream criminal system faces a crisis of legitimacy. This Article examines whether we can apply aspects of the community justice movement to improve the processing of serious crime in the mainstream criminal system. It assesses current community justice practices—community prosecution, community courts, sentencing circles, and citizen reparative boards—and finds that they have structural and procedural defects that should bar their use for serious crime. However, the chief innovation of the community justice movement—localized, popular decision-making—would alleviate many of the problems facing the criminal justice system. The Article argues that it may be possible to implement the goals of community justice while avoiding the defects of the current reform initiatives by restructuring the grand jury procedure and permitting local communities to sentence offenders

Social Norms in the Ancient Athenian Courts

Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents’ past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct

Social Norms in the Courts of Ancient Athens

Ancient Athens was a remarkably peaceful and well-ordered society by both ancient and contemporary standards. Scholars typically attribute Athens’ success to internalized norms and purely informal enforcement mechanisms. This article argues that the formal Athenian court system played a vital role in maintaining order by enforcing informal norms. This peculiar approach to norm enforcement compensated for apparent weaknesses in the state system of coercion. It mitigated the effects of under-enforcement in a private prosecution system by encouraging litigants to uncover and punish their opponents’ past violations. Court enforcement of extra-statutory norms also permitted the Athenians to enforce a variety of social norms while maintaining the fictions of voluntary devotion to military and public service and of limited state interference in private conduct

"Verdict Most Just": The Modes of Classical Athenian Justice

Most comparative lawyers know a great deal about Roman law but almost nothing about the courts of classical Athens. This is no mystery: unlike Roman law, Athenian law produced no jurisprudence and very little legal doctrine, and contributed nothing to the courts of Europe, England, or any other modem legal system. For the most part, Athenians decided legal disputes by empowering juries to apply statutes that were hopelessly broad. Juries could give weight to any sort of fact or plea that a litigant cared to bring before them. To us, this looks like lawlessness. Did the Athenians simply fail to grasp the value of the rule of law as we know it? Were legal disputes fundamentally contests for status decided without any pretence to justice? These are the explanations ancient historians commonly give. In my view, the Athenian legal system was more complex than is generally thought. The Athenians made a conscious decision to reject the rule of law in most cases, and they did so because they thought giving juries unlimited discretion to reach verdicts based on the particular circumstances of each case was the most just way to resolve disputes. But in other cases, such as commercial suits, where the practical importance of more predictable results was high, the Athenians did have rules of admissibility and relevance that limited jury discretion. The Athenian legal system struck a balance between following rules and doing justice that is altogether different from that which may be seen in the pages, for example, of the Federal Reporter. Classical Athens thus provides a valuable case study of a legal system that favored equity and discretion over the strict application of generalized rules. But it managed to do so in a way that did not destroy predictability and legal certainty in the parts of the system where they were necessary

Precautionary Constitutionalism in Ancient Athens

The Athenian democracy developed striking institutions that, taken together and separately, have long engaged the attention of theorists in law, politics, and history. We will offer a unifying account of the major institutions of the Athenian constitutional order, attempting both to put them in their best light and to provide criteria for evaluating their successes and failures. Our account is that Athenian institutions are best understood as an illustration of precautionary constitutionalism: roughly, the idea that institutions should be designed to safeguard against political risks, limiting the downside and barring worst-case political scenarios, even at the price of limiting the upside potential of the constitutional order. We use this framework to illuminate some of the distinctive features of the Athenian democracy: selection of officials by lot, rotation of office, collegiality, ostracism, and the graphe paranomon (the procedure for overturning an unconstitutional decree). Under some circumstances, precautionary constitutionalism is a useful strategy of institutional design. Under other circumstances, however, precautionary constitutionalism can go wrong in characteristic ways – by perversely exacerbating the very risks it seeks to prevent, by jeopardizing other values and thereby imposing excessive costs, or simply by creating futile precautions that fail the test of incentive-compatibility. We evaluate the precautionary institutions of the Athenian democracy in this light, and suggest that some failed while others succeeded. While selection by lot, rotation, and collegiality proved to be enduring and incentive-compatible institutions, ostracism perversely exacerbated the risks of tyranny and political domination it was intended to prevent, and the graphe paronomon collapsed into futility