Restorative Justice is a set of principles and practices that create a different approach to dealing with crime and its impacts than that found in the traditional United States criminal justice system. The heart of the Restorative Justice approach is organized face-to-face meetings among all parties connected to a crime, including victims, offenders, and their families, as well as court-ordered financial restitution.
Through openly sharing their experiences of what happened, all parties seek to agree on what the offender can do to repair the harm caused by their offense. This may include a payment of money—reparations or restitution—from the offender to the victim, apologies and other amends, and other actions to compensate those affected and to prevent the offender from causing future harm.
Definition and History
Restorative justice seeks to evaluate the harmful impact of a crime on its victims and determine what can be done to best repair that harm while holding the person or persons who caused it accountable for their actions. For offenders, accountability entails accepting responsibility and acting to repair the harm done to the victim. Instead of viewing a crime as simply a violation of a rule or law, restorative justice sees crime as a violation of people and relationships according to the social order. Restorative justice strives to address the dehumanization frequently experienced by people in the traditional criminal justice system.
The top priorities of restorative justice are first to assist and heal persons who have been harmed by crime or social wrongdoing, and secondly—to the degree possible—to restore relationships within the community.
After first appearing in written sources during the first half of the nineteenth century, modern usage of the term “restorative justice” was introduced in 1977 by psychologist Albert Eglash.
Having studied incarcerated people since the 1950s, Eglash described the three prevailing approaches to justice:
- “Retributive justice,” based on punishment of offenders;
- “Distributive justice,” involves fair therapeutic treatment of offenders; and
- “Restorative justice,” is based on restitution after consideration of input from victims and offenders.
In 1990, American criminologist Howard Zehr became one of the first to articulate a definitive theory of restorative justice in his groundbreaking book Changing Lenses–A New Focus for Crime and Justice. The title refers to providing an alternative framework—or new lens—for looking at crime and justice. Zehr contrasts “retributive justice,” which deals with crimes as offenses against the state with restorative justice, where crime is viewed as a violation of people and relationships.
By 2005, the expression “restorative justice” had evolved into a popular movement involving many segments of society, including “police officers, judges, schoolteachers, politicians, juvenile justice agencies, victim support groups, aboriginal elders, and mums and dads,” writes Professor Mark Umbreit. “Restorative justice views violence, community decline, and fear-based responses as indicators of broken relationships. It offers a different response, namely the use of restorative solutions to repair the harm related to conflict, crime, and victimization.”
Along with the impacts of crime on individual victims, the framework of restorative justice strives to deal with the effects of great social injustice and mistreatment of groups such as indigenous peoples. According to Howard Zehr, “Two people have made very specific and profound contributions to practices in the field—the First Nations people of Canada and the U.S.—and the Maori of New Zealand.” In these cases, restorative justice represents a “validation of values and practices that were characteristic of many indigenous groups,” whose traditions were “often discounted and repressed by western colonial powers.”
Eventually, modern restorative justice broadened to include communities of care as well, with victims’ and offenders’ families and friends participating in collaborative processes called conferences and circles. Conferencing addresses power imbalances between the victim and offender by including additional supporters.
Today, the most visible applications of restorative justice center on the payment of monetary reparations to victims of historical social injustice.
For example, calls demanding the payment of reparations to enslaved men and women—and later, their descendants—have been made in various forms since the end of the Civil War. However, these demands have never been met in any significant way by the federal government.
In 1865, Union Maj. Gen. William T. Sherman ordered that land confiscated from Confederate landowners be divided up into 40-acre portions and distributed to emancipated Black families. Following the assassination of President Abraham Lincoln, however, the order granting “40 acres and a mule” was swiftly rescinded by new President Andrew Johnson. The majority of the land was returned to white landowners.
However, Americans have received compensation for historical injustices before. Examples include Japanese-Americans interned during World War II; survivors of police abuses in Chicago; victims of forced sterilization; and Black victims of the Tulsa Race Massacre of 1921.
After World War II, Congress created the Indian Claims Commission to pay compensation to members of any federally recognized Native American tribe for land that had been seized by the United States.
The group’s mission was complicated by a lack of written records, difficulties in putting a value on the land for its agricultural productivity or religious significance, and problems with determining boundaries and ownership from decades, or more than a century, earlier. The results were disappointing for Native Americans. The commission paid out about $1.3 billion, the equivalent of less than $1,000 for each Native American in the United States at the time the commission dissolved in 1978.
On separate occasions 40 years apart, Congress awarded payments to Japanese-Americans who were taken from their homes during World War II and sent to internment camps. The Japanese American Evacuation Claims Act of 1948 offered compensation for real and personal property they had lost. About $37 million was paid to 26,000 claimants. But no provision was made for lost freedom or violated rights. That came in 1988 when Congress voted to extend an apology and pay $20,000 to each Japanese-American survivor of the internment. More than $1.6 billion was eventually paid to 82,219 eligible claimants.
Understanding the Theory
The outcomes of restorative justice processes seek to both repair the harm and address the reasons for the offense while reducing the likelihood that the perpetrator will re-offend. Rather than focusing merely on the severity of the punishment meted out, restorative justice measures its results by how successfully the harm is repaired.
Restorative justice focuses on those most directly affected by a crime—victims and survivors—rather than on the offender. In the restorative justice process, victims are empowered to participate more fully than in the traditional system. In this manner, the opportunity of crime victims to fully express the harm they have experienced, their full participation in decision making, and support from the community all aid in healing in the aftermath of a serious crime.
According to Howard Zehr, a recognized founding father of restorative justice, the concept is based on three pillars:
Harms and needs, obligation to put things right, and engagement of stakeholders.
In other words:
- Empathy for all and by all. There must be an awareness that while harm was done to a victim—and possibly a larger community—there may also have been past harm done to the accused as well, and that harm may be a factor in his or her behavior.
- A mumbled “sorry” is not enough. There must be a process, a moderated one, which helps the accused somehow right the wrong that was committed.
- Everyone is involved in the healing. There must include a dialogue with all parties—victim, offender, and even community—to genuinely move on and have an impact.
Is Restorative Justice Successful?
The use of restorative justice has seen worldwide growth since the 1990s, suggesting that its results have been positive. A study conducted by the University of Pennsylvania in 2007 found that it had a higher rate of victim satisfaction and offender accountability than traditional methods of justice delivery. According to the report, restorative justice practices:
- substantially reduced repeat offending for some offenders, but not all;
- at least doubled the number of offenses brought to justice as opposed to traditional criminal justice;
- 5reduced crime victims’ occurrence of post-traumatic stress symptoms and related costs;
- provided both victims and offenders with more satisfaction with justice than traditional criminal justice;
- reduced crime victims’ desire for violent revenge against their offenders;
- reduced the costs of criminal justice; and
- reduced recidivism more than prison alone.
As the report stresses, “The classic mistaken assumption of conventional justice is to punish criminals as if they will never come back from prison to live among us. But with rare exceptions, they all come back. When they do, we depend on them not to cause more harm in the community.”
“The evidence clearly suggests that [restorative justice] is a promising strategy for addressing many of the current problems of the criminal justice system,” stated the report. “More important, it is a strategy that has been subjected to rigorous testing, with more tests clearly implied by the results so far.”
Applications and Practice
Outside of the United States, a variety of countries around the world are experimenting with restorative justice programs. Especially in North America, these programs have been inspired by traditions similar to those developed centuries ago by Native Americans and First Nations groups such as the Inuit and Métis in Canada. The theory of restorative justice in Indigenous cultures is also gaining recognition in places such as Africa and the Pacific Rim region. Experimental restorative justice programs have also been tested in Latin America, the Middle East, and Asia.
Currently, many of the more popular and successful restorative justice programs have dealt with cases involving juvenile offenders and family services. Jurisdictions that have employed these programs report having found them helpful in not only allowing victims and offenders to move forward but also in allowing both parties to agree on an amends process that provides appropriate restitution, such as financial compensation or community service.
5In North America, the growth of restorative justice has been facilitated by non-governmental organizations (NGOs) dedicated to this approach to justice, such as the National Association of Community and Restorative Justice and the National Juvenile Justice Network, as well as by the establishment of academic centers, such as the Center for Justice and Peacebuilding at Eastern Mennonite University in Virginia and the University of Minnesota’s Center for Restorative Justice and Peacemaking.
In October 2018, the Committee of Ministers of the Council of Europe adopted a recommendation to member states which recognized “the potential benefits of using restorative justice with respect to criminal justice systems” and encouraged member states to “develop and use restorative justice.”
Applications
In criminal cases, typical restorative justice processes allow and encourage victims to testify about the crime’s impact on their lives, receive answers to questions about the incident, and participate in holding the offender accountable. Offenders are allowed to explain why the crime occurred and how it has affected their lives. Offenders are also given an opportunity—to directly compensate the victim in some manner acceptable to the. In criminal cases, this compensation can include money, community service, education to prevent recidivism or a personal expression of remorse.
In the courtroom process intended to achieve procedural justice, restorative justice practices might employ pretrial diversion, such as plea bargaining, or dismissing charges after establishing an agreed-upon restitution plan. In cases of a serious crime, a sentence may precede other forms of restitution.
Within the affected community, concerned individuals meet with all parties involved to assess the experience and impact of the crime. Offenders listen to victims’ experiences, preferably until they can empathize with the experience. Then they speak about their own experience, for example, how they decided to commit the offense. A plan is made for the prevention of future occurrences, and for the offender to address the damage to the injured parties. Community members hold the offender(s) accountable for adherence to the approved restitution plan.
In North America, Indigenous groups are using the restorative justice process to try to create more community support for both victims and offenders, particularly the young people involved. For example, different programs are underway at Kahnawake, a Mohawk reserve in Canada, and at the Pine Ridge Indian Reservation of the Oglala Lakota Nation, within South Dakota.
Criticisms
Restorative justice has been criticized for eroding the legal rights and remedies of both victims and offenders; for trivializing crime, particularly violence against women; for failing to truly “restore” victims and offenders; for leading to vigilantism; and for failing to result in what has traditionally been thought of as “justice” in North America.
However, the most frequently cited criticism of restorative justice processes arises from skepticism about an apology to the victim as a way of dealing with serious criminal matters. The perception sometimes exists that it can simply be a way to “get away with murder.”
There are limits to what restorative justice can accomplish. One major example lies in the case of violent crimes. This is an area where facts and emotions can become complicated very quickly, depending on the circumstances. In the case of in-person meetings, even if they’re closely monitored, there’s a possibility that communications will break down and cause the victim additional emotional or mental trauma. Poorly trained or inexperienced facilitators may cause victim-offender mediation or family-group conferences to fail. Poor facilitation may thus lead to parties abusing each other.
In the case of a violent crime in which the victim and offender knew each other—such as in domestic abuse cases—victims may fear further contact with the offender. In cases of repeated violence, attempts at preserving a toxic victim-offender relationship may be more dangerous than potentially helpful.
Restorative justice is also criticized for assuming that the offender is remorseful and willing to make amends—which is not always true. Even if the offender is truly remorseful, there is no guarantee that the victim will be open to an apology. Instead, the victim or victims may question the offender in a way that becomes counterproductive.
In instances of minor crimes, such as property crimes, attempts at restorative justice may sometimes lead to a criminal receiving a lighter sentence or avoiding a criminal record altogether. Whether or not this is “justice” can vary on a case-by-case basis.
Finally, restorative justice is criticized for treating every person as being a morally responsible individual when this is not always the case. Some people are simply not morally responsible, remorseful, or capable of feeling (or willing to feel) empathy, and the restorative process may fail to account for that.
Sources:
https://www.thoughtco.com/restorative-justice-5271360
https://www.harvardmagazine.com/2021/07/features-restorative-justice
https://www.dreamstime.com/illustration/restorative-justice.html
https://www.russellwebster.com/rjspend/
https://www.justice.gc.ca/eng/cj-jp/rj-jr/index.html
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