Restorative justice

According to Howard Zehr, restorative justice differs from traditional criminal justice in terms of the guiding questions it asks. In restorative justice, the questions are:

1. Who has been hurt?
2. What are their needs?
3. Whose obligations are these?
4. What are the causes?
5. Who has a stake in the situation?
6. What is the appropriate process to involve stakeholders in an effort to address causes and put things right?[7]

In contrast, traditional criminal justice asks:

1. What laws have been broken?
2. Who did it?
3. What do the offender(s) deserve?[8]

Others, however, have argued that there are several similarities between restorative justice and traditional criminal justice, and that some cases of restorative justice constitute punishment from the perspectives of some positions on what punishment is.[9]

Restorative justice is also different from the adversarial legal process or that of civil litigation.

As Braithwaite writes, "Court-annexed ADR (alternative dispute resolution) and restorative justice could not be philosophically further apart". While the former seeks to address only legally relevant issues and to protect both parties' rights, restorative justice aims at "expanding the issues beyond those that are legally relevant, especially into underlying relationships".[10]

The phrase "restorative justice" has appeared in written sources since the first half of the nineteenth century.[11] The modern usage of the term was introduced by Albert Eglash, who in 1977 described three different approaches to justice:

1. "retributive justice", based on punishment;
2. "distributive justice", involving therapeutic treatment of offenders;
3. "restorative justice", based on restitution with input from victims and offenders.[12]

According to Howard Zehr, "Two peoples 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... [I]n many ways, 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".[13] For example, in New Zealand, prior to European contact, the Maori had a well-developed system called Utu that protected individuals, social stability and the integrity of the group.[14] Restorative justice (sometimes known in these contexts as circle justice) continues to be a feature of indigenous justice systems today.[15]

Howard Zehr's book Changing Lenses–A New Focus for Crime and Justice, first published in 1990, is credited with being "groundbreaking",[16] as well as being one of the first to articulate a theory of restorative justice.[17] The title of this book refers to providing an alternative framework for thinking about – or new lens for viewing – crime and justice.[18] Changing Lenses juxtaposed a "retributive justice" framework, where crime is viewed as an offense against the state, with a restorative justice framework, where crime is viewed as a violation of people and relationships.[19] The book made reference to the positive results of efforts in the late 1970s and 1980s at victim–offender mediation, pioneered in the United States by Howard Zehr, Ron Claassen and Mark Umbreit.[20]

By the second half of the 1990s, the expression "restorative justice" had become popular, evolving to widespread usage by 2006.[21] The restorative justice movement has attracted many segments of society, including "police officers, judges, schoolteachers, politicians, juvenile justice agencies, victim support groups, aboriginal elders, and mums and dads".[22]

"Restorative justice is a fast-growing state, national, and international social movement that seeks to bring together people to address the harm caused by crime," write Mark Umbreit and Marilyn Peterson Armour. "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."[23]

In North America, the growth of restorative justice has been facilitated by NGOs dedicated to this approach to justice, such as the Victim Offender Mediation Association, as well as by the establishment of academic centers, such as the Center for Justice and Peacebuilding at Eastern Mennonite University in Virginia, the University of Minnesota's Center for Restorative Justice and Peacemaking, the Community Justice Institute at Florida Atlantic University, the Center for Peacemaking and Conflict Studies at Fresno Pacific University in California, and the Centre for Restorative Justice at Simon Fraser University in British Columbia, Canada.[24] Members of the Mennonites and the social-action arm of their church-community, Mennonite Central Committee, were among the early proponents.[25][26] "[T]he antinomian groups advocating and supporting restorative justice, such as the Mennonites (as well as Amish and Quaker groups), subscribe to principled pacifism and also tend to believe that restorative justice is much more humane than the punitive juvenile and criminal justice systems."[27]

The development of restorative justice in continental Europe, especially the German speaking countries, Austria, Germany and Switzerland, is somewhat different from the Anglo-Saxon experience. For example, victim–offender mediation is just one model of restorative justice, but in the present European context it is the most important one.[28][29] Restorative justice is not just a theory, but a practice-oriented attitude in dealing (not only) with criminal relevant conflicts. Restorative justice may be moving towards restorative practice.[30]

In October 2018, the Committee of Ministers of the Council of Europe adopted a recommendation to member states which recognised "the potential benefits of using restorative justice with respect to criminal justice systems" and encouraged member states to "develop and use restorative justice".[31]

Internationally, 125 nations collectively endeavored to contribute to the Prison Fellowship International set up by Charles Colson in 1979, which is aimed to help the current and former insiders and their family members beyond America. The Center for Justice & Reconciliation was initiated for information dissemination and education pertaining to justice and reconciliation as of 1996 by the Prison Fellowship International.[32]

The South African Truth and Reconciliation Commission shows how restorative justice can be used to address system-wide offenses that affect broad swaths of a group or a society.[33]

In criminal cases, victims can testify about the crime's impact upon their lives, receive answers to questions about the incident, and participate in holding the offender accountable. Meanwhile, offenders can tell their story of why the crime occurred and how it has affected their lives. They are given an opportunity to compensate the victim directly – to the degree possible.[34] In criminal cases, this can include money, community service in general and/or specific to the offense, education to prevent recidivism, and/or expression of remorse.

A courtroom process might employ pretrial diversion, dismissing charges after restitution. In serious cases, a sentence may precede other restitution.[35]

In the community, concerned individuals meet with all parties to assess the experience and impact of the crime. Offenders listen to victims' experiences, preferably until they are able to empathize with the experience. Then they speak to their own experience: how they decided to commit the offense. A plan is made for prevention of future occurrences, and for the offender to address the damage to the injured parties. All agree. Community members hold the offender(s) accountable for adherence to the plan.

While restorative justice typically involves an encounter between the offender and the victim, some organizations, such as the Mennonite Central Committee Canada, emphasize a program's values over its participants. This can include programs that only serve victims (or offenders for that matter), but that have a restorative framework. Indigenous groups are using the restorative justice process to try to create more community support for victims and offenders, particularly the young people. 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 the United States.

Besides serving as an alternative to civil or criminal trial, restorative justice is also thought to be applicable to offenders who are currently incarcerated.[36] The purpose of restorative justice in prisons is to assist with the prisoner's rehabilitation, and eventual reintegration into society. By repairing the harm to the relationships between offenders and victims, and offenders and the community that resulted from the crime, restorative justice seeks to understand and address the circumstances which contributed to the crime. This is thought to prevent recidivism (that is, that the offender repeats the undesirable behavior) once the offender is released.

Research of a restorative reentry planning circle process in Hawai‘i showed reduced residivism that controlled for the self-selection bias that often is difficult to overcome in restorative practices research. The reentry planning circle process was also shown to help children, whose incarcerated parents had one, address the trauma they suffered from losing a parent to prison.

The potential for restorative justice to reduce recidivism is one of the strongest and most promising arguments for its use in prisons. However, there are both theoretical and practical limitations, which can make restorative justice infeasible in a prison environment. These include: difficulty engaging offenders and victims to participate in mediation; the controversial influence of family, friends, and the community; and the prevalence of mental illness among prisoners.[37]

In social work cases, impoverished victims such as foster children are given the opportunity to describe their future hopes and make concrete plans to transition out of state custody in a group process with their supporters.[38] In social justice cases, restorative justice is used for problem solving.[39]

Restorative justice has also been implemented in schools.[40][41] It uses a similar model to programs used by the criminal justice system.[42] Restorative practices can "also include preventive measures designed to build skills and capacity in students as well as adults".[43] Some examples of preventive measures in restorative practices might include teachers and students devising classroom expectations together or setting up community building in the classroom.[43] Restorative justice also focuses on justice as needs and obligations, expands justice as conversations between the offender, victim and school, and recognizes accountability as understanding the impact of actions and repairing the harm.[44] In this approach, teachers, students and the community can reach agreements to meet all stakeholders’ needs.[44] Collectivity is emphasized as the group must create an action plan to heal the harm and find a way to bring the offender back into the community.[45]

While the focus is in making the victim(s) whole, the added benefit of restorative justice programs are a reduction in disciplinary actions such as suspensions and expulsions, and more effective reformative and/or reconciliatory actions imposed, such as writing apology letters, performing community service or- for example, in cases of bullying- composing a research paper on the negative effects of bullying. This approach develops and fosters empathy, as participating parties must come to understand the needs of all stakeholders in order for the conflict to be fully rectified. Both the offending party and the wronged/victimized party can address and begin to resolve their obstacles to achieving their education, with the aid of the restorative justice partners. Behavioral problems stemming from grief, for example, may be recognized and acknowledged within restorative justice programs; as a result, the party would be referred to a counselor to receive grief counseling. By approaching student discipline with restorative justice in the forefront, conflicts may be resolved to meet the funding needs of the school district- by way of reduced student absenteeism, rehabilitate the offending party, and to restore justice and make whole the wronged party. Collectivity and empathy are further developed by having students participate in restorative justice circles in administering roles such as mediators or jurors.

Victim–offender dialogue (VOD), (also called victim–offender mediation, victim–offender conferencing, victim–offender reconciliation, or restorative justice dialogue), is usually a meeting, in the presence of one or two trained facilitators, between victim and offender. This system generally involves few participants, and often is the only option available to incarcerated offenders. Victim Offender Dialogue originated in Canada as part of an alternative court sanction in a 1974 Kitchener, Ontario case involving two accused vandals who met face-to-face with their many victims.[48] One of the first victim–offender mediation projects in the United Kingdom was run by South Yorkshire Probation Service from 1983–1986.[49]

Family group conferencing (FGC) has a wider circle of participants than VOD, adding people connected to the primary parties, such as family, friends and professionals.[50] FGC is most commonly used for juvenile cases, due to the important role of the family in a juvenile offender's life. Examples can be found in New South Wales (Australia) under the 1997 Young Offenders Act, and in New Zealand under the 1989 Children, Young Persons, and their Families Act. The New South Wales scheme has been favorably evaluated by the New South Wales Bureau of Crime Statistics and Research.

Fiji uses this form of mediation when dealing with cases of child sexual assault. While it may be seen as beneficial to involve the victim's family in the process, there are multiple issues stemming from this. For example, the vast majority of offenders are known to the victims in these cases. In a Fijian context, the notion of family extends wider than that of the normative Western idea. Therefore, involving the family in these cases may become complicated, for the family may not necessarily side with the victim or the process itself could cause rifts within the clan. Furthermore, the process as a whole places much emphasis on the victim forgiving the offender, as opposed to the offender making amends with the victim. Overall, the current process has the potential to cause great trauma and revictimise the victim.[51]

Restorative conferences (RC) involves a wider circle of participants than VOD and FGC. There are many different names and procedures of operation for these community-based meetings. They are also referred to as Restorative Circles, Restorative Justice Conferences, Community Restorative Boards or Community Accountability Conferences. Specific programs have their own names, such as Community Justice Committees in Canada and Referral Order Panels in England & Wales. Restorative Circles refers to restorative justice conferences in Brazil[52][53] and Hawaii,[54] though can have a wider meaning in the field of restorative practices.

A conference will typically include the victim, the offender and members of the local community, who have typically received some training.[55] The family and friends of the offender and victim are frequently invited. RC is explicitly victim-sensitive.[56][57] The community members discuss the nature and impact of the offense with the offender. The discussion continues until restitution is agreed; they may also see that the agreement is fulfilled.

The largest restorative justice conference in history took place in the course of the 1990 reconciliation campaign that ended the blood feuds among ethnic Albanians in Kosovo, which was attended by between 100,000 and 500,000 participants.[58] The reconciliation campaign was led by Anton Çetta, and over a period of three years (1990-1992) approximately one third of the entire population of Kosovo were documented to be actively involved in restorative justice conferences to end the blood feuds.[58]

Circles of Support and Accountability (CoSA) originated as a project of the "Welcome In", a Mennonite church in Hamilton, Ontario. This approach has demonstrated the capacity to enhance the safe integration of otherwise high-risk sex offenders with their community. Canada judges some sex offenders too dangerous for any form of conditional release, "detaining" them until they serve their entire sentence. A subsequent conviction often leads to designation as a "Dangerous Offender".

Prior to 1994, many such offenders were released without any support or observation beyond police surveillance. Between 1994 and 2007, CoSA assisted with the integration of well over 120 such offenders. Research indicated that surrounding a 'core member' with 5–7 trained volunteer circle members reduced recidivism by nearly 80%.[59] Further, recidivist offences were less invasive and less brutal than without the program. CoSA projects now exist in every Canadian province and every major urban centre. CoSA projects are also operational in several U.S. states (Iowa, California, Minnesota, Oregon, Ohio, Colorado, Vermont) as well as in several United Kingdom regions (Cornwall, Devon, Hampshire, Thames Valley, Leicestershire, North Wales, North Yorkshire, and Manchester).

Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. The procedure commonly works as follows: the offender applies for the intervention, a healing circle is held for the victim, a healing circle is held for the offender, a sentencing circle is held and finally, follow-up circles to monitor progress.

Positive criminology and positive victimology are conceptual approaches, developed by the Israeli criminologist Natti Ronel and his research team, that are well connected to restorative justice theories and practice. Positive criminology and victimology both place an emphasis on social inclusion and on unifying and integrating forces at individual, group, social and spiritual levels that are associated with the limiting of crime and recovery from victimization. In traditional approaches the study of crime, violence and related behaviors emphasizes the negative aspects in people’s lives that are associated with deviance, criminality and victimization. A common understanding is that human relationships are affected more by destructive encounters than by constructive or positive ones. Positive criminology and victimology argue that a different approach is viable, based on three dimensions – social integration, emotional healing and spirituality – that constitute positive direction indicators.

Prison abolition not only calls for the eradication of cages, but also new perspectives and methodologies for conceptualizing crime, an aim that is shared by restorative justice. In an abolitionist style of restorative justice, participation is voluntary and not limited by the requirements of organizations or professionals, the process includes all relevant stakeholders and is mediated by an independent third party. The emphasis is on meeting the needs of and strengthening the community.[60]

Reduction of recidivism is also a goal of RJ,[62] secondary to the restoration of offenders.[63] Proponents argue that it can prevent reoffending[62][64] and deter other potential criminals.[65] Critics counter that RJ does not significantly influence crime rates.[63][65]

While some older studies showed mixed results, as of 2013, studies that compared recidivism rates have become more definitive and in favor of Restorative Justice.[62][65] Some studies claim modest, relative reductions,[66][67][68][69] but more recent studies are finding significant and meaningful reductions in recidivism rates (see below).

A 1998 meta-analysis by Bonta et al. found that restorative justice programs caused mild reductions in reoffending rates.[70] Latimer, Dowden and Muise carried out a meta-analysis that provided a more precise definition.[70] conducted the second meta-analysis on the effectiveness of RJ. This study is important because it addresses the file-drawer problem. Also, some of the studies analyzed implemented a randomized controlled trial (a gold standard in research methods), although this does not represent the majority of studies included. This meta-analysis lends empirical support for the effectiveness of RJ to lower recidivism rates and increase compliance and satisfaction rates. However, the authors caution that a self-selection bias is rife through most studies of restorative justice. They reference authors from one study[71] who found no evidence that restorative justice has a treatment effect on recidivism beyond a self-selection effect.

The third meta-analysis on the effectiveness of RJ was conducted by Bradshaw, Roseborough, and Umbreit in 2006. The results of this meta-analysis add empirical support for the effectiveness of RJ in reducing juvenile recidivism rates. Since then, studies by Baffour in (2006) and Rodriguez (2007) have also concluded that RJ reduces recidivism rates compared to the traditional justice system. Bergseth (2007) and Bouffard (2012) supported these findings and also concluded that there may be some long-term effects of RJ over the traditional justice system; as well as RJ being more effective with serious crimes, RJ participants are less likely to commit serious crimes if they do re-offend and they go longer without re-offending. All of these studies found that RJ is equally effective regardless of race.

In 2007, Lawrence W. Sherman and Heather Strang published a review of the previous literature and they conclude that in no way can RJ be more harmful than the traditional justice system. It is at least equally as effective as the traditional justice system in all cases. In most cases (especially with more serious offenses and with adult offenders) it is significantly more effective than the traditional justice system at lowering recidivism rates. It also reduced crime victims' post-traumatic stress symptoms and related costs and desires for violent revenge against their offenders. It provided both victims and offenders with more satisfaction with justice than the alternative, and saved money overall.

A recent meta-analysis by the Cochrane Collaboration (2013) on the effect of youth justice conferencing on recidivism in young offenders found that there was no significant effect for restorative justice conferencing over normal court procedures for number re-arrested, nor monthly rate of reoffending. They also noted a lack of high quality evidence regarding the effectiveness of restorative justice conferencing for young offenders.[46]

According to Morris, the following are some of the most common criticisms that are used against the practicality or realism of restorative justice:

...restorative justice erodes legal rights; restorative justice results in net-widening; restorative justice trivializes crime (particularly men's violence against women); restorative justice fails to "restore" victims and offenders; restorative justice fails to effect real change and to prevent recidivism; restorative justice results in discriminatory outcomes; restorative justice extends police powers; restorative justice leaves power imbalances untouched; restorative justice leads to vigilantism; restorative justice lacks legitimacy; and restorative justice fails to provide "justice".[72]

Another critique of restorative justice suggests that professionals are often left out of the restorative justice conversation. Albert W. Dzur and Susan M. Olson argue that this sector of justice cannot be successful without professionals. They claim that professionals can aid in avoiding problems that come up with informal justice and propose the theory of democratic professionalism, where professionals are not just agents of the state – as traditional understandings would suggest – but as mediums, promoting community involvement while still protecting individuals' rights.[73]

Additionally, some critics like Gregory Shank and Paul Takagi see restorative justice as an incomplete model in that it fails to fix the fundamental, structural inequalities that make certain people more likely to be offenders than others.[74] They and others question the structure of society and the fairness of institutional systems at their very core, pushing for addressing the root causes of many one-on-one offenses as well as for creating a socio-economic system that will be more conducive to harmonious, healthy living in general.[75]

Finally, some researchers agree that more research must be conducted to support the validity of restorative justice in schools, specifically in how its implemented.[45] More exactly, restorative justice practices that are inconsistent, insufficient, or run out of funding tend to have the worst reputations for success.[76] While many research studies support positive findings in restorative justice, continuing studies are still needed.

Some judicial systems only recognize monetary restitution agreements. For instance, if victim and offender agree that the offender would pay $100 and mow the victim's lawn five times, the court would only recognize the $100 as restitution. Some agreements specify a larger monetary amount (e.g., $200) to be paid if the non-monetary restitution is not completed.

Many jurisdictions cap the amount which a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors. In addition, personal service usually must be approved by the juvenile's parents.

According to the Victim Offender Mediation Association, victims are not allowed to profit from restitution (the equivalent of punitive damages); only out-of-pocket losses (actual damages) can be recovered. Courts can disallow unreasonable compensation arrangements.

Both victim and offender can be hesitant to engage in victim–offender dialogue later in the criminal justice process. Once an offender starts serving a sentence, they may believe that the sentence is how they take responsibility for their actions rather than conversing with the victim. For victims, the trial and the sentencing of the offender may terminate the possibilities for discussion. For both offender and victim, victim–offender dialogue is limited in the amount of trust between the two parties.[77]