01/16/2013 11:03 am ET | Updated Mar 18, 2013

Django Unchained : Restorative Justice -- Who We Are, Who We Want to Be

This post first appeared on The Life of the Law blog.

Here's something to reconcile: how much I (you?) loved Django Unchained and Inglourious Basterds because they are moral revenge fantasies, and how much you believe in the kind of restorative justice principles touted in The New York Times Magazine earlier this month.

I saw Django this weekend and while I shielded my eyes from the killing of slaves, I opened them wide for the villain-slaughtering scenes in the last half hour of the film. I watched Django (Jamie Foxx) shoot a man in the kneecaps, watched the man writhe on the ground. I watched him shoot another in the groin, all without looking away. And I enjoyed it.

Because when bad guys get hurt, I like it. We all do to some extent. Even if it's just the retaliation of one who had to focus on her hazy shoes for several minutes earlier, gripping her armrest as a man was ripped apart by a dog on screen. The perpetrators were guys I was glad to see die.

So when I got home and sat down at my computer to find the article on restorative justice still open so I could write about it in a laudatory way, I paused.

Why hello, hypocrite.

The debate over the purpose of criminal justice invokes theories of punishment. Possible answers to the question "why incarcerate (or punish)?" are both forward-looking and backward-looking. Forward-looking theories are rehabilitation (get them to where they're not committing crimes), deterrence (prevent other people from committing crimes), and incapacitation (remove the bad guy from the streets, and there's one fewer bad guy on the streets). Then there is the backward-looking theory of retribution (you get what you deserve).

Restorative justice discards these categorical approaches in order to focus on the specific situation at hand. The goal is to "repair the harm caused by the crime," which hinges on relationships between people: victim and offender, offender and community. The set of possible solutions is larger, and communication is critical to identifying the optimal one. A restorative justice process may end in the offender taking care of the victim's garden forever. Or receiving a five-year sentence instead of fifteen. Are these alternative outcomes "deserved?" Who knows. Are they deterring? Unlikely. Are they superior? It depends on your view of justice.

In Who's In Charge?: Free Will and the Science of the Brain, Michael Gazzaniga discusses a study in which people who'd labeled themselves as endorsing different theories of justice were asked to allocate punishments. Regardless of whether they put themselves in a forward-looking category, nearly everyone (97 percent) acted retributively.

"The reasons people give for their punishments... do not match what they do. They endorse utilitarian policies in the abstract but invoke retributivist ones in practice."

This suggests that we want to be forward-looking but we're not. Perhaps Tarantino's revenge fantasies are so powerful because of the vindictiveness that lies in us even as outside the cinema we pretend it isn't so, because we hope it isn't so.

In his review of Django, Samuel Sattin at Salon compares it to his experience watching Inglourious Basterds:

It was more like a video game in the experiential sense, an exercise in schadenfreude. Something as simple as someone giving you a joystick and saying, 'Hey, young American Jew, you know those Nazis that sent bubbe and zayde to the ovens? As opposed to playing out that story again, why don't spend a couple of hours blowing the heads off the fuckers who were responsible. It'll be good for you.'

What's probably good for us is to be reminded that our vengeful impulses are a large reason why restorative justice is such an attractive concept. To the extent that we want our more reasonable, forward-looking values to govern our behavior, it wins, because one thing it's very much not is vengeful. Whether it "works" is a question being asked all over the globe and brings us back around to the same issue of what that means.

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