The success of a penal policy which takes into account the reparative model is also due to matters of juridical coherence.
Reparative Justice meets the need to overcome the crisis of effectiveness and credibility that the modern penal justice system is going through, which is due to the ever-growing expansion of penally relevant sectors, and to the systematic use of punishment.
The continuous expansion of criminal offence cases and the presumed inevitability of the dual concept offence = punishment, which have given origin to a penal law that is "maximum" rather than "minimum", have obscured the very essence of penal law, in its auxiliary function of exceptional punishing intervention (estrema ratio).
The modern mechanism of penal justice has given origin to deep contradictions: along with the everlasting conviction of the need for a punishing reply on the State's side, we have witnessed the multiplication of juridical institutions aiming at the elusion of the actual application of punishment itself (such as the conditional suspension of sentences or reduction of a sentence for good conduct and so on). On one hand, there is the conviction that offence and punishment constitute an inseparable combination; that punishment is the only effective deterrent against committing crimes, that without punishment penal law would lose its very essence. On the other hand, we witness deflationary needs and the necessity to decongest a sector which is obviously overloaded, as it is able to deny a real punishment in serious cases and ensure it for petty ones. The result is an inversely proportional ratio between the effectiveness and credibility of the penal system and the regulatory production. (Alessandro ROIATI, Diritto penale minimo e mediazione penale, in Riv. Pen. 2003, p. 1047).
It is thus necessary to reconsider criminal policy, so as to overcome the perverse logics of a systematic use of punishment and in order to find different models to reply. These must not consist in a mere diversification of sanctions from the quantum point of view; but they must be innovative and competitive instruments based on communicative and not repressive logics.
Substantially, primary importance is given to a reflection upon the function of traditional punishment, upon its preventive and re-educational capacity. Secondly, the question concerns the effectiveness and credibility of the penal system and its decongestion. From the former point of view, we are obliged to re-consider whether the logic which the dual concept offence-punishment is based on is really unavoidable and fair, or whether it implies a logic of defence through offence, being based on dynamics that imply exclusion rather than inclusion; whether this mechanism is still able to meet the needs of a complex society.
The penal system is facing a crisis because of its excessive use of penalization, and it is not credible as it tends to spread its action without being able to make a substantial difference in the replies it gives. The principle of substantial equality claims that different kinds of crimes receive different kinds of replies.
In such a problematic context, reparative justice and penal mediation find their natural humus; as they do not offer a new sanction to add to the several ones already in force with legislation, but rather a really innovative course of penal justice, which focuses on the relational aspect of the conflict and the restitution of the conflict itself to the parties' management.
The fundamental issues are no longer 'who deserves to be punished' and 'which punishment is to be inflicted'; but 'how to solve the conflict', 'how to make up for the damage'. Making up for the damage does not mean 'refunding economically', but finding a remedy, a cure and a solution for the deep gap that the criminal event has created between the parties.
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