Shame, Anger, and Guilt: The Hierarchy of Emotions in Restorative Justice

By Scot N. DuFour
2016, Vol. 8 No. 04 | pg. 1/2 |

Abstract

There has been a shift away from the traditional adversarial criminal justice system and towards a victim centered system. The effects of this shift can be seen in talk of “closure” as a justification for the death penalty, the use of victim impact statements in court hearings, and the implementation of restorative justice programs. Restorative justice programs are centered on providing healing and reconciliation for all concerned parties in a criminal offense rather than seeking justice in a traditional retributive manner. Since restorative justice programs focus on healing, emotion comes into play and research on the topic of emotions in restorative justice indicates that certain emotions are more important than others in that healing process. Restorative justice programs prove effective in reducing recidivism across a variety of types, and by focusing on the proper emotions criminals and victims meet all of the prima facie duties of Ross’s deontological ethic.

The use of restorative justice programs within the criminal justice system is a relatively recent development that has started being used instead of the traditional retributive system that defines justice in a punitive way. There are many examples of restorative justice programs or changes in judicial procedure that illustrate the shift towards a restorative justice mentality within the criminal justice system generally. After the sentencing phase of the trial for James Holmes, the Aurora movie theater shooter, victims and public officials talked about finding “closure” and healing for the victims and the community (Mitchell, 2013; CBS Local, 2015). Providing closure for victims has become a goal of the criminal justice system, and although there is not a concrete definition of closure it is generally accepted to be an emotional state related to peace, relief, or a sense of finality (Bandes, 2009).

There is a large amount of academic literature demonstrating the efficacy of restorative justice programs but there remains some skepticism about its methods. Further studies into the methods of restorative justice programs have analyzed the role that different emotions play in the ability for those programs to work effectively. The majority of those studies appear to be related to face-to-face victim and offender conferences, but the same emotions play an important role in many different restorative justice programs.

This paper will explain the concepts and emotions behind restorative justice, the effectiveness of the programs, and how they are justified ethically. The specific role that different emotions play in the context of restorative justice programs will be examined and applied to various types of restorative programs such as restorative programs related to sex offenses, sex offender registries, and domestic violence. Restorative justice programs are ethical, and effective in reducing recidivism across various crime types when focusing on guilt rather than shame as the target emotions.

Restorative Justice

When President Clinton signed the Victim Rights Clarification Act he made the statement that victims should be “at the center of the criminal justice process” rather than lost somewhere on the periphery (Wood, 2003, p. 303). That declaration is just one of many ideas or statements at the heart of the restorative justice movement. Judges have been viewed in the past as if they were some kind of mechanical calculator of justice that applied strict logic and rationality to the cases before them to determine how the law should be applied in each particular case. That idea is slowly losing support as restorative justice and other victim centered programs emerge. There is even a subfield within law known as therapeutic jurisprudence that sees the law as a potential vehicle for victim therapy by recognizing that law is not about pure logic but experience and emotion (Winick, 1997).

Restorative justice turns the traditional justifications for punishment upside down with several primary tenets that are very different from those traditional ideas. Restorative justice questions the belief that punishment of the offender is obligatory to restore justice and places a heavy emphasis on healing rather than mere punishment (Wenzel, Okimoto, Feather, & Platow, 2008). The typical retributive response to crime is often considered justified by a Kantian rationale of deontological (Robinson, 2008), so restorative justice may seem unjustified by that ethical system.

Where there used to be the belief that justice was a scale that must be balanced by a punishment equal to the suffering caused by the offender, there is now the belief that providing the victims with satisfaction by involving them in the justice process is far more beneficial. Offender punishment in restorative justice programs is more flexible and keys primarily on making the offender take accountability and feel certain emotions (Wenzel et al., 2008). There is considerable literature on the subject claiming that creating strong emotional responses in offenders, targeting emotions like guilt and shame, and creating empathy are primary goals of restorative justice (Wenzel et al., 2008; Mills, Barocas, & Ariel, 2013; Jackson, 2009; Rodogno, 2008). This is, however, clearly justified by a different form of deontological ethics.

There is a different form of deontological ethics posited by W.D. Ross that relies on several prima facie duties to which all people should adhere; fidelity, reparation, gratitude, non-injury, beneficence, self-improvement, and justice (Simpson, 2015). Restorative justice programs fall neatly into this form of ethics by focusing on offender guilt and accountability (fidelity); involving the victim to discover how the situation can be repaired (reparation); creating a sense of empathy that may result in gratitude; preventing a cycle of violence or revenge (beneficence); focusing on creating new behaviors or rehabilitation (self-improvement); and reaching a decision that is believed to be doing justice by all parties involved.

Examining the goals of any criminal justice program or initiative is important to ensure that it is ethically justified while working efficiently and achieving the desired goals. If creating strong emotional responses in offenders is critical to effective restorative justice then understanding which emotions should be sought after and how they are defined is important.

Understanding Shame and Guilt

Rodogno (2008) claims that the emotions generally thought that should be targeted by restorative justice programs are; remorse, guilt, shame, empathy, and hope. The emotions that should be avoided are; anger, humiliation, fear, and disgust. Jackson (2009) explains that one goal of restorative justice is to hopefully create feelings of guilt and shame in the offender through the victim’s expression of their feelings. Both of these articles claim that guilt and shame are emotions that should be created in the offender through restorative justice programs such as face-to-face conferences between the victim and the offender.

Rodogno (2008) created a list of attributes of both shame and guilt to illustrate the different effects that those two emotions, although they are similar, have on an individual. Shame is more painful of an experience for an individual than guilt. Shame makes an individual feel small and worthless while guilt creates feelings of tension and regret. In general, shame makes individuals want to run off and hide or strike back against the situation while guilt solicits motivation to confess, repair, and apologize (Rodogno, 2008).

Just taking a quick glance at the traits of shame and guilt respectively creates an intuitive response that perhaps guilt is better suited than shame for restorative justice programs, but is that initial reaction an accurate one? If shame makes an individual want to turn away and hide then it is hard to see how a restorative justice program based on dialogue and communication would be effective. That is, in fact, the case with psychological research on the subject of shame; it creates a situation that naturally inhibits people from opening up and sharing their experiences with others. There is a strong body of literature that the feeling of shame has a negative impact on empathy for others and shame also has a tendency to create an angry response to the situation (Rodogno, 2008). Guilt, on the other hand, has different emotional outcomes that are more beneficial to the restorative justice goals and facilitates the ethical duties of reparation, self-improvement, and justice.

Guilt seems to have the opposite effect on empathy from shame; studies have shown that guilt leads to more empathy for others which in turn creates motivation for reparative actions (Rodogno, 2008). Creating the feeling of guilt in the offender motivates that individual to take action that will help to repair the damage they have done. This is primarily important to restorative justice because victims who choose to use restorative justice programs feel most satisfied when they have greater involvement in the process and can work with the offender to find some type of reparation (Wenzel et al., 2008).

Hitherto this paper has only addressed what the literature has said about the goals of restorative justice and the emotional goals associated with those restorative programs. Exploring data from various types of restorative justice programs will allow a better evaluation of the statements made in the literature. Some literature expresses that shame and guilt are both necessary while other literature sees shame as detrimental to justice restoration. Fortunately there are several studies that can be evaluated for their use of shame and guilt and how those emotions changed the recidivism rate for the crimes in question.

Restorative Justice for Sex Crime Victims

There are certain crimes that seem to demand justice more than others; people seem to be appalled by certain types of crimes, and sexual assault is certainly one of those. Considering that sexual assault is one of those crimes that desperately cries out for justice it may be hard to imagine a sexual assault victim wanting to enter a restorative justice program with the offender. Despite what might intuitively seem to be a strong desire for vengeance or suffering against a sexual assault offender, many people have chosen to take part in a restorative justice program specifically for sex assault called RESTORE.

Koss (2014) describes how RESTORE is a restorative justice program and the process that is involved. RESTORE is a program that attempts to foster a dialogue between the victim (called survivor-victims) and the offender (called the responsible person). The names used for the victim and offender in the program demonstrate how the program attempts to reverse the roles that were in play when the crime occurred.

The goal of RESTORE is to provide the victim with a voice in how the criminal case proceeds while making the offender accept responsibility. RESTORE is a consensual program that must be agreed upon by both the victim and the offender and was implemented for two primary reasons; first, only about 13% of reported sexual assaults in the United States result in a conviction of the offender, and second, because sexual assault victims have reported wanting a criminal justice process that recognized them as legitimate victims (Koss, 2014).

The results of the study conducted on the victims and offenders who participated in RESTORE were very encouraging as it relates to the completion of the offender reparation plans and victim satisfaction with the program. Koss (2014) found that about 66% of felony offenders and 91% of misdemeanor offenders completed the reparation plan drafted during the program. That is incredibly successful considering that sexual assaults cases handled through traditional adjudication resulted in 75% being closed without any consequences to the offender. Also critical to note is that 70% of the victims felt justice was done and 84% of the victims would recommend RESTORE to others (Koss, 2014). So what role does guilt and shame play in the RESTORE program?

Koss (2014) reported that one of the primary reasons victims chose RESTORE was to be able to individualize the way accountability would be imposed on the offender. The majority of the offenders in the program ended up writing a letter of apology that would be read aloud by the offender at the final conference. This is an interesting aspect of the program because one main criticism against restorative justice is that it uses the victims of crimes as an “apology sponge” to make the offender feel better about themselves (Koss, 2014, p. 1653). The victims in the program were given the choice of attending that final conference and not one victim during the study chose to be present at that conference to hear the apology.

Shame, not guilt, is very closely associated with public exposure and creates the feeling of wanting to hide or escape from the situation (Rodogno, 2008). RESTORE was able to create a situation where the prior meetings between the victim and offender cleared the path for an apology but in the end the apology was not heard in a kind of final culminating address thereby avoiding the semi-public act of reading an apology letter aloud. We learned from Rodogno (2008) that guilt feelings create drive to confess, repair, and apologize while shame does the opposite. RESTORE is clearly able to cultivate guilt feelings in the offenders that allows for victim satisfaction while avoiding the shame that might prevent the offender from completing the task.

Sex Offender Registries

A related and relevant issue to sexual assaults is the use of sex offender registries in the United States because sex offender registries offer valuable insight into the use of guilt and shame into talk about sexual assaults. The use of sex offender registries is often justified by creating a means for safe reintegration through public monitoring of sex offenders and to prevent sex offender recidivism (Prescott, 2012).

It was already noted that public exposure is strongly linked with shame feelings rather than feelings of guilt. The goal of sex offender registries calls for public exposure of the offender and therefore also creates a greater risk of creating feelings of shame in the offender. Numerous studies have found that sex offender registrants are often subjected to harassment, difficulty finding housing and employment, and a feeling of being ostracized (Tewksbury, 2006; Prescott, 2012).

Research on the effectiveness of sex offender registries strongly supports the conclusion that shaming sex offenders does not help in reducing recidivism while creating a system of guilt and accountability does. Prescott (2012) found that there is strong evidence that sex offender registration alone reduces recidivism but public notification of sex offenders may actually increase recidivism. Making someone register as a sex offender with a local police department and provide their biographical information is certainly a way to make the offender feel accountable and also provides a means for establishing guilt.

Making public notifications about sex offenders in a specific area or neighborhood is a blatant example of public exposure and undoubtedly creates feelings of shame for the offender. Prescott’s results then support the hypothesis that using guilt, but not shame, has potential to reduce recidivism. This conclusion is also strongly supported by labeling theory which posits that being labeled a deviant (shaming) will increase the chance for recidivism; 94% of registered sex offenders fear that they will be devalued or discriminated against (Mingus & Burchfield, 2012).

Sex offenses are taken very seriously by society and in general the public view of sex offenders is one of disgust. The literature regarding victim needs in sex offenses, the effectiveness of restorative justice programs like RESTORE, and the statistics related to sex offender registries bolster the belief that positive effects are achieved when offenders feel guilty not shameful. If restorative justice programs can be successful when the crime in question is as taboo as sexual assault then it is hard to imagine too many crimes that would not benefit from that type of restorative justice program. Domestic violence crimes are also taboo and hard to talk about but studies into the effectiveness of restorative justice programs for those crimes are also promising.

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