Restorative justice and modern penal rationality: a real innovation in criminal matters?

Abstract

This article aims to discuss restorative justice, an alternative form of conflict management, through a theoretical framework of the theories of punishment, or more specifically, the modern penal rationality, as coined by Pires (2013). The idea is to demonstrate how restorative justice escapes modern penal rationality, presenting itself as an alternative to the system of ideas that underlies our current criminal justice system. The methodology is qualitative and the research came from a case study of restorative justice programs in the state of São Paulo, as well as interviews with professionals and participant observation of restorative circles that happened at a school in the city of São Caetano do Sul (SP). The results demonstrate that restorative justice, despite its transformative potential, still has been facing difficulties to be implemented. The resistances are related to legal professionals and the population that is served by these programs that do not understand the model as expertise (case of legal professionals), or as a benefit for those involved (case of adolescents and their families), as both groups still perceive conflict management in punitive terms. The research findings show us that restorative justice can be considered as an innovation, because it pressures the criminal justice system by proposing a new form of conflict management that shifts the focus from punishment to the restoration of the relationships affected by the conflict. Despite its advantages, it still has a long way to go until this expertise could be translated into transformative practices.

Keywords

• teorias da pena
• justiça restaurativa
• racionalidade penal moderna