Restorative Justice

Overview

Restorative jus­tice is a set of prin­ci­ples and prac­tices that respond to crim­i­nal behav­ior with goals of resti­tu­tion and res­o­lu­tion, rather than focus­ing on ret­ri­bu­tion. These prac­tices work to address the dehu­man­iza­tion that many peo­ple expe­ri­ence in the tra­di­tion­al crim­i­nal legal sys­tem. Rather than view­ing crim­i­nal behav­ior as a vio­la­tion of the law, restora­tive jus­tice con­sid­ers this behav­ior to be a vio­la­tion of com­mu­ni­ty and inter­per­son­al rela­tion­ships. Restorative jus­tice prac­tices intend to look at the impact of each crime and deter­mine what is nec­es­sary to mit­i­gate the harm caused, while still hold­ing the per­son account­able for his actions. Unlike the tra­di­tion­al crim­i­nal legal sys­tem, restora­tive jus­tice also seeks out to address­es the caus­es of crim­i­nal behav­ior, as well as how to pre­vent recidi­vism. As a diver­sion prac­tice, restora­tive jus­tice can lessen direct involve­ment in the crim­i­nal legal sys­tem. Success is not mea­sured by pun­ish­ment, but rather the repa­ra­tion of harm.

The process of restora­tive jus­tice includes those most direct­ly impact­ed by the crime at hand. In prac­tice, vic­tims, defen­dants, com­mu­ni­ty mem­bers, and jus­tice pro­fes­sion­als come togeth­er to dis­cuss the harms brought about by crim­i­nal behav­ior. Rather than focus­ing on the actions of the per­son who caused harm, restora­tive jus­tice cen­ters the con­ver­sa­tion around those who have been harmed and what they have expe­ri­enced. For many vic­tims, this empow­er­ment is not found in the tra­di­tion­al crim­i­nal legal sys­tem. Community mem­bers also have stake in the con­ver­sa­tion, help­ing to hold peo­ple who com­mit crimes account­able and pro­vid­ing sup­port to the par­ties involved. Justice pro­fes­sion­als act as facil­i­ta­tors, focus­ing on com­mu­ni­ty devel­op­ment instead of surveillance.

Restorative jus­tice has been used in a lim­it­ed num­ber of death penal­ty cas­es with var­ied lev­els of suc­cess. While most states have imple­ment­ed restora­tive jus­tice process­es for low-lev­el non­vi­o­lent and vio­lent crimes, there have only been a few juris­dic­tions will­ing to try restora­tive jus­tice with homi­cides and cap­i­tal cas­es. Some defense coun­sel work­ing in the tra­di­tion­al legal sys­tem fear that the use of restora­tive jus­tice in these cas­es may vio­late a defendant’s Constitutional right against self-incrim­i­na­tion. Since restora­tive jus­tice is found­ed on the prin­ci­ple of account­abil­i­ty, it is almost inevitable that a defen­dant will make an admis­sion of his own guilt dur­ing the restora­tive jus­tice process. This can become prob­lem­at­ic if an indi­vid­ual has not been for­mal­ly sen­tenced, as there are cur­rent­ly no process­es to exclude these poten­tial­ly incrim­i­nat­ing state­ments. Discussions in the restora­tive jus­tice process often include infor­ma­tion about what led some­one to act in a crim­i­nal man­ner, and this may involve admis­sions of oth­er crim­i­nal behav­ior. Whether or not the crime in ques­tion is resolved, there are con­cerns about state­ments made dur­ing restora­tive pro­ceed­ings that could be used against the defen­dant in sep­a­rate crim­i­nal pro­ceed­ings (Lanni 2021). Attorneys for those fac­ing the death penal­ty often cite this self-incrim­i­na­tion con­cern because of the lengthy appeals process that restora­tive jus­tice may even fur­ther com­pli­cate. For those work­ing in the restora­tive jus­tice space, the sever­i­ty of the crime at hand should not be the fac­tor that stops restora­tive jus­tice from pro­ceed­ing. Senior Fellow sujatha bali­ga, who works with Impact Justice, an orga­ni­za­tion focused on crim­i­nal jus­tice reform, believes that ​“with prop­er train­ing… we can use restora­tive jus­tice ear­ly on in any crime.”

Restorative Justice Pillars

Focuses on harm caused by crime.

Restorative jus­tice views crime as harm done to peo­ple and com­mu­ni­ties and focus­es on repair­ing harm in both con­crete and sym­bol­ic ways. The vic­tim-ori­ent­ed nature of restora­tive jus­tice allows for vic­tims’ needs to be con­sid­ered even when the iden­ti­ty of the per­son who com­mit­ted the crime is unknown. By focus­ing on harm, restora­tive jus­tice also aims to address the harm of the larg­er com­mu­ni­ty, look­ing to address the root caus­es of the criminal behavior.

Wrongs or harms result in obligations.

Since restora­tive jus­tice focus­es on harm, peo­ple who com­mit crimes must begin to under­stand the con­se­quences of the harm they caused. They must also take respon­si­bil­i­ty and try to cor­rect harms, both con­crete­ly and symbolically.

Promote engage­ment and participation.

All involved stake­hold­ers need to know about each oth­er and be involved in defin­ing what jus­tice looks like in their case. This com­mu­ni­ca­tion can hap­pen in con­fer­ences, where sto­ries and expe­ri­ences are shared and a con­sen­sus about the next steps is reached, or through indi­rect exchanges, like victim-impact panels.

Approaches to Restorative Justice

Family Group Conferences

Family group con­fer­ences (FGCs) are struc­tured con­ver­sa­tions with a facil­i­ta­tor, that pro­vide an oppor­tu­ni­ty for key indi­vid­u­als impact­ed by a spe­cif­ic crime — the victim(s), the person(s) who caused the harm, and their respec­tive fam­i­ly and friends — to open­ly dis­cuss the impact of the giv­en harm and deter­mine appro­pri­ate mea­sures of account­abil­i­ty for the respon­si­ble par­ty. FGCs start­ed in New Zealand and worked to include indige­nous Māori val­ues in address­ing wrong­do­ings. Falling under the the­o­ry of rein­te­gra­tive sham­ing, group con­fer­enc­ing advo­cates ​“argue that peo­ple are gen­er­al­ly deterred from com­mit­ting crimes by two infor­mal types of social con­trol: con­science and fear of social dis­ap­proval” (Braithwaite 1989).

Victim-Impact Panels

Victim-impact pan­els are ded­i­cat­ed to pro­vid­ing crime vic­tims with the oppor­tu­ni­ty to share with the per­son who caused harm how their crim­i­nal behav­ior impact­ed them. These pan­els do not always require the par­tic­i­pa­tion of the vic­tims; as sur­ro­gate vic­tims, friends, and fam­i­ly with sim­i­lar expe­ri­ences may speak on the victim’s behalf. Whether the vic­tim is present or not, these pan­els help the per­son who com­mit­ted the crime to indi­vid­u­al­ize the peo­ple or per­son they harmed as well as demon­strat­ing the impact of their behav­ior on the vic­tim and com­mu­ni­ty. Victim-impact pan­els are gain­ing in pop­u­lar­i­ty and have become a sen­tence alter­na­tive for a vari­ety of vio­lent and non-vio­lent crimes, includ­ing prop­er­ty crimes and domestic violence. 

Mediation

Victim-defen­dant medi­a­tion offers vic­tims the chance to talk to the per­son who caused them harm in a safe envi­ron­ment focused on dis­cus­sion, nego­ti­a­tion, and res­o­lu­tion. These meet­ings have two main goals: (1) hold the per­son direct­ly account­able for their actions, learn how their actions impact­ed oth­ers, and deter­mine how to repair the harm(s) they caused; and (2) pro­vide vic­tims with a sense of empow­er­ment. Nearly all vic­tim-defen­dant medi­a­tion groups believe ​“the pur­pose of vic­tim-defen­dant medi­a­tion is not to deter­mine guilty (gen­er­al­ly, guilt has already been deter­mined in anoth­er forum), rather it is to teach the [defen­dant how] to accept respon­si­bil­i­ty and repair harm.” Through con­tin­u­ous, open dia­logue, and the assis­tance of a facil­i­ta­tor, par­tic­i­pants are pro­vid­ed with an oppor­tu­ni­ty to express their feel­ings and ​“devel­op mutu­al­ly accept­able resti­tu­tion plans that address the harm caused by the crime” (DOJ 2010).

Circle Sentencing

Circle sen­tenc­ing, often referred to as peace­mak­ing cir­cles, stem from the tra­di­tion­al prac­tices of Indigenous Americans and Canadian Aboriginals. This is a com­mu­ni­ty-guid­ed process designed to address crim­i­nal­i­ty and delin­quen­cy. Victims, defen­dants, fam­i­ly, friends of both par­ties, social and jus­tice per­son­nel, as well as com­mu­ni­ty mem­bers make up the ​‘cir­cle.’ Through con­ver­sa­tion, each par­ty details how the events impact­ed them and attempts to under­stand why the crime in ques­tion occurred. Circle mem­bers work togeth­er to ​“iden­ti­fy the steps need­ed to assist in the heal­ing [of] all affect­ed par­ties and pre­vent future crimes.” Circle sen­tenc­ing varies for every com­mu­ni­ty, as it is often designed to work cohe­sive­ly with local needs and cul­ture. However, most cir­cle sen­tenc­ing groups are facil­i­tat­ed by a trained community member.

Community Reparative Boards

Community repar­a­tive boards are made up of a few spe­cial­ly trained cit­i­zens who con­duct in-per­son, face-to-face ses­sions with defen­dants fac­ing court-ordered par­tic­i­pa­tion. Board mem­bers dis­cuss a penal­ty agree­ment with the per­son who has com­mit­ted the crime, super­vise his com­pli­ance, and pro­vide the courts with these com­pli­ance records. While most restora­tive jus­tice mod­els rely on the par­tic­i­pa­tion of the crime vic­tim, com­mu­ni­ty repar­a­tive boards may be bet­ter suit­ed to take input from com­mu­ni­ty mem­bers. Because vic­tims are not direct­ly involved in these process­es and it is often a court-ordered prac­tice, some sug­gest that com­mu­ni­ty repar­a­tive boards have less of a repar­a­tive effect than oth­er restora­tive justice models.

Recent Studies and Research

• Kennedy, J. L. D., Tuliao, A. P., Flower, K. N., Tibbs, J. J., & McChargue, D. E. (2019). Long-Term Effectiveness of a Brief Restorative Justice Intervention. International Journal of Offender Therapy and Comparative Criminology, 63(1), 3 – 17. https://​doi​.org/​1​0​.​1​1​7​7​/​0​3​0​6​6​2​4​X​1​8​7​79202
• Levinson, O. Reconciling Ideals: Restorative Justice as an Alternative to Sentencing Enhancements for Hate Crimes, Minnesota Law Review, 2020 – 2021.
• Lloyd, A., Borrill, J. Examining the Effectiveness of Restorative Justice in Reducing Victims’ Post-Traumatic Stress. Psychol. Inj. and Law 13, 77 – 89 (2020). https://​doi​.org/​1​0​.​1​0​0​7​/​s​1​2​2​0​7-019 – 09363‑9
• Sliva, SM, Plassmeyer, M. Effects of restora­tive jus­tice pre-file diver­sion leg­is­la­tion on juve­nile fil­ing rates: An inter­rupt­ed time-series analy­sis. Criminal Public Policy. 2021; 20: 19– 40. https://​doi​.org/​1​0​.​1​1​1​1​/1745 – 9133.12518
• Lodi E, Perrella L, Lepri GL, Scarpa ML, Patrizi P. Use of Restorative Justice and Restorative Practices at School: A Systematic Literature Review. International Journal of Environmental Research and Public Health. 2022; 19(1):96. https://​doi​.org/​1​0​.​3​3​9​0​/​i​j​e​r​p​h​1​9​0​10096
• Alfred Allan, Justine de Mott, Isolde M. Larkins, Laura Turnbull, Tracey Warwick, Lacey Willett & Maria M. Allan (2022) The impact of vol­un­tari­ness of apolo­gies on vic­tims’ respons­es in restora­tive jus­tice: find­ings of a quan­ti­ta­tive study, Psychiatry, Psychology and Law, 29:4, 593 – 609, DOI: 10.1080/13218719.2021.1956383