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3. Retribution is not the only legitimate object of criminal process; this process should take other matters into account, such as healing, compensation, as restorative justice.
Kent is not alone on his journey to preserve the legal process tradition in the domain of criminal process. In the United States, there are a lot of legal scholars who are insistently arguing for this tradition. Among them, Professor Spitko is the one who especially concerns about the interests of aboriginal people. In a recent article, he has observed that “in a variety of contexts, cultural minorities have cause to fear adjudication of their legal rights and responsibilities in a legal system dominated by majority-culture personnel (most notably including judges and jurors).” He argues that “this is particularly true when cultural minorities attempt to use formal legal processes to give effect to choices which are inconsistent with prevailing community norms.” Accordingly, cultural minorities “face a cruel dilemma” in either electing to "forego the formal enforcement of their legal rights or trusting enforcement of their rights to a culturally-biased forum.” Essentially, Professor Spitko argues that the process values associated with the judicial process systematically fail to protect the legal rights of unpopular cultural minorities. Rather than addressing the process failures in an effort to correct the procedural shortcomings of the existing judicial system (which he deems considerable), he instead endorses a kind of mass exodus from the state and federal court systems. He would undoubtedly suggest that private (or community-based) dispute resolution mechanisms represent a viable means of empowering cultural minorities to construct procedures that pay adequate attention to culturally-specific practices that potentially impact the adjudicatory process (e.g., reliance on oral traditions rather than written documents to pass on the history of the community). It is also undoubtedly that Kent’s new models will help such scholars as Professor Spitko to clarify and refine their theories.
Restorative Justice as Alternative Legitimate Cause
Restorative justice is an ascending concept in global public discourse. According to Professor John Braithwaite, Canadians has made a big contribution to the development of this concept, because they are especially open to learning from the wisdom of Aboriginal people about justice . He also points out two major values of the conception: one is healing relationships, as opposed to balancing hurt with hurt; another is community deliberation, which is problem-oriented, rather than punishment-obsessed.
Kent’s non-punitive model of victims’ rights embraces this concept warmly and comfortably. Actually, this model needs two values to form a circle, namely, crime-prevention and restorative justice . Restorative justice is also in perfect harmony with legal process scholarship. The pragmatic approach employed by legal process scholars always attempts to “understand competing perspectives and achieve some reconciliation between them.”
Restorative justice added a normative dimension into Kent’s new models. As Professor Ernest J. Weinrib told us, law is not a collection of posited norms or an exercise of official power, but a social arrangement responsive to moral argument.” Thus, we always need a theory or model to justify our legal claims, arguments or decisions. The traditional theories of criminal law employ the concept of retributive justice to justify criminal sanctions, but this concept cannot explain why some victims don’t want or need the punishment put on the criminals. Restorative justice as a normative structure enables the victims to choose the remedies which really make sense to them.
Criminalization of Politics
While building his non-punitive model of victims’ rights, one of the major targets Kent wants to criticize and redress is the criminalization of politics. As he has seen, “in the 1980s and the 1990s, legislatures frequently turned to criminal justice reforms in an attempt to better protect victims and potential victims of crimes, including women, children, and various minorities. ……This process of criminalization began when legislatures, courts, and the media focused on criminal justice issues that were symptoms of social, economic, political, and cultural problems.” The crime-control model, the due-process model and the punitive model of victims’ rights are all promoters for this trend, because they are all punitive in nature. Kent has insightfully summed up the causes for this trend: (1). The government, restricted by its limited fiscal capacity, relies on the relatively cheap method of intervention—namely, the criminal sanctions—to address a lot of social problems which can be better solved through some more expensive interventions; (2). The symbolic struggle between due process and victims’ rights, which attracts a disproportionate amount of attention from the media and legislatures, produces conditions conducive to the criminalization of politics. Through his criticism on the criminalization, Kent shows a good sense of balance: although he is not reluctant to recognize the interaction between law and politics, he also want to put this interaction in a normative structure, which can keep the institutional dialogue on the one hand, and maintain the relative independence of legal system on the other hand. In his mind, law is not omnipotent, much still less the punitive function of law. The government should not shift off its responsibility on social welfare and social justice by putting everything into the cheap assembly line of criminal justice. The non-punitive model, with its emphasis on the real needs of victims, is the only alternative to redress this undesirable trend.
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