Restorative Justice: Some Facts and History

In the United States, the criminal justice system is undergirded by a thirty-year era of “get tough” policies that have bred high rates of recidivism, a focus on punishing lawbreaking rather than attending to the harm experienced by crime victims, and ever-increasing expenditures that exceed amounts spent on education and health in some states’ budgets. Under the current system, over 6. 7 million adults or 3. 1 percent of the adult population is behind bars, on probation, or on parole. Research shows that incarceration—instead of curbing crime—makes nonviolent offenders into violent criminals and is a revolving door in and out of prison. Yet we continue to spend over 52 billion a year on corrections. The overuse of prison and extended probation casts a long shadow that devastates families and communities throughout the country. For example, African American men are imprisoned at six times the rate for whites. This disproportionality severs offenders from their children, who become the hidden or forgotten victims of crime today and are too often the newly incarcerated tomorrow. Our criminal justice system also burdens many ex-offenders with a felony record, which robs them of employment and leads many into homelessness, vagrancy, and future criminal behavior, in addition to robbing the state of possible income tax revenues. This is an out-of-control system that is fed, ominously, by students who are referred to alternative education programs. In Texas alone, the 100, 000 students referred to such programs annually are five times more likely to drop out than their peers in mainstream schools, making them probable candidates for the school to prison pipeline. Roughly 80 percent of prison inmates never finished high school. As a society, we are in desperate need of a different approach to the problems created by crime and social injustice—an approach that puts energy into the future, not the past, an approach that begins with who has been hurt and what their needs may be, and finishes with giving wrongdoers a way back instead of guaranteeing them a lifetime of hardship. Restorative justice is a fast-growing state, national, and international social movement and set of practices that aim to redirect society’s retributive response to crime. Restorative justice views crime not as a depersonalized breaking of the law but as a wrong against another person. It attends to the broken relationships between three players: the offender, the victim, and the community. Accordingly, restorative justice seeks to elevate the role of crime victims and community members; hold offenders directly accountable to the people they have harmed; and restore, to the extent possible, the emotional and material losses of victims by providing a range of opportunities for dialogue, negotiation, and problem solving. Moreover it views criminal acts more comprehensively than our judicial system because it recognizes how offenders harm victims, communities, and even themselves by their actions. The ultimate aim of restorative justice is one of healing. If survivors of crimes receive appropriate emotional and material reparation, the harm can be redressed; by seeking to repair the damage caused, the offender can be reconciled with the victim and reintegrated back into his or her social and familial networks; and through such reconciliation and reintegration, community harmony has a chance to be restored. This manner of healing gives the actual victims and the community, as well as the offenders, the opportunity to take an active part in the justice process instead of a traditionally passive role. Restorative justice is a young field that emerged during the 1970s as alternative approaches to the court process, such as alternative dispute resolution, were becoming a national trend. It emerged alongside the victims’ rights movement, which argued for greater involvement of crime victims in the criminal justice process, as well as for the use of restitution as compensation for losses. Although many of the values, principles, and practices of restorative justice hearken back to indigenous cultures, a 1974 case in Kitchener, Ontario, is considered the beginning point of today’s restorative justice movement. This “Kitchener experiment” required two teenagers to meet with and pay restitution to every one of the twenty-two people whose property they had vandalized. From the late 1970s to the early 1980s, a number of experimental programs, modeled after the Kitchener program, were initiated in several jurisdictions in North America and Europe. These initiatives, however, remained small in size and number, having little impact on the larger system. In 1994, restorative justice took a giant step toward becoming mainstream when the American Bar Association endorsed victim-offender mediation, a program usually associated with first-time offenders and minor crimes. Additional support came from the National Organization for Victim Assistance, which published a monograph entitled Restorative Community Justice: A Call to Action, and from the United Nations, the Council of Europe, and the European Union, all of which have committed to promote restorative practices. Today, thirty states either have restorative justice principles in their mission statements and policy plans or legislation promoting a more balanced and restorative juvenile justice system. This institutionalization is further buttressed by the American Bar Association, which began offering grants in 2008 to develop restorative justice initiatives in criminal law settings. The most widely used approaches in restorative justice are victim-offender mediation, family group conferencing, circles, and victim-offender dialogue. All put victims and offenders in direct dialogue, nearly always face-to-face, about a specific offense or infraction. They also have in common the presence of at least one more person who serves as the facilitator, and they usually involve advance preparation of the parties so they will know what to expect. The focus of the encounter most frequently involves naming what happened, identifying its impact, and coming to some common understanding, often including reaching agreement as to how any resultant harm will be repaired. These practices are also used in non–criminal justice settings such as schools or neighborhoods. Victim-offender mediation is the oldest practice and is typically used with victims and offenders of property crimes and minor assaults. Participants include the victim, offender, and facilitator. The face-to-face meeting is centrally focused on the victim and the offender, accompanied by a small number of support persons (such as parents or friends). Family group conferencing originated in New Zealand as a means of diverting young offenders from formal adjudication. It routinely involves support persons for both victims and offenders, as well as additional participants from the community. This approach emphasizes supporting offenders in taking responsibility for their actions and in changing their behaviors. Thus, the involvement of the offender’s family and other support persons is critical to this approach; the offender’s community of care helps build understanding and provides the opportunity for the offender to shift back from the role of offender to that of community member. Circles are variously called “peacemaking circles, ” “repair of harm circles, ” and “sentencing circles. ” The numbers and types of participants are similar to those gathered for conferencing but include wider community member participation, either as interested persons, representatives of the criminal justice system, or as additional circle keepers or facilitators. Circles are more focused on the harm done to the community than the other approaches. Circles also serve to build community. Circles feature shared leadership and consensus-based decision making as core to the functioning of the group and the development of the group’s process. Victim-offender dialogue is an outgrowth of victim-offender mediation. It is used in crimes of severe violence, such as murder, vehicular homicide, or serious felony assault. It is strictly victim-initiated, not stipulated by the court, and occurs post-conviction and usually during incarceration. It involves a lengthy period of preparation for both victims and offenders and requires experienced facilitators. An increasing number of hybrid or modified practices are developing in response to specific social issues. Circles are being used in prisons, for example, to bring together surrogate or unrelated victims and offenders for dialogue. Family group conferencing is being integrated into the child welfare system to give families more power and control over developing permanency plans for children who are in or at risk of entering foster care due to parental abuse or neglect. Adaptations in core approaches also allow restorative justice to be used experimentally for seemingly intractable problems such as domestic violence. Although controversial because of concerns about the victim’s ongoing safety, a number of new programs are using modified restorative justice processes for domestic violence and reporting positive results. Similarly, restorative justice programs are being used experimentally for social reform such as defense-initiated victim outreach in capital murder cases, an outreach initiative that gives survivors of crime and the defense team access to each other for the purpose of meeting those survivors’ needs. Although contested because of legal considerations, careful and sensitive application of restorative justice principles has advanced this sort of outreach as a viable practice at both federal and state levels. Contextually oriented variations on victim-offender mediation, family group conferencing, circles, and victim-offender dialogue will likely become the restorative justice norm. Movement away from a purist model, however, has, in some instances, made restorative justice programs difficult to identify. Indeed, much gets named restorative justice today that wanders far from its basic core values. Evaluations of victim-offender mediation and family group conferencing are extensive and, in relationship to youth, these approaches have been examined over a longer period than most others in the juvenile justice system. The eighty-five studies and four meta-analyses that have been generated over the past thirty years show consistently high rates of participant satisfaction in a variety of sites, across many cultures, and in cases involving both mild and severe offenses. Preventing recidivism is often used as a long-term measure of effectiveness. A recent meta-analysis of 12, 000 juveniles found a 25 percent reduction in recidivism, leading the researchers to claim that victim-offender mediation is a well-established, empirically supported intervention for reducing juvenile recidivism. Victim-offender mediation and family group conferencing also affect the well-being of crime victims. A recent randomized and controlled trial of victims of robbery and burglary found one-third fewer post-traumatic stress symptoms at six weeks among victims involved in restorative justice practices than among victims in the control group, and 40 percent fewer symptoms at six months. Victim-offender dialogue in crimes of severe violence also shows substantial results. An ethnographic study found that 80 percent of participants reported that the dialogue process had a profound effect on their lives. Important factors for victims included letting go of hate; obtaining answers to questions such as “Why did you did this to me? ”; placing the anger where it belongs; and experiencing an offender’s ownership and remorse. Important factors for offenders included being accountable, seeing their victim as a human being, understanding the effects of their actions, being able to give something back, and being more open to their own feelings. The effectiveness of circles has principally been evaluated in schools. In Minnesota, almost half of the school districts use some form of restorative practices, including circles. The number of acts of physical aggression recorded per year in one Minnesota elementary school dropped from 773 to 153 over 3. 5 years of application. Circles are also being used for offender re-entry. Research on circles of support and accountability for high-risk sex offenders in Canada showed that sexual reoffending decreased by 83 percent for offenders engaged in restorative justice circles in contrast to the matched comparison group and actuarial projections. The dramatic results of these studies are beginning to turn heads in mainstream society. With all hope, future studies will continue to document the effectiveness of restorative justice methods in making our communities safer and more well. Restorative justice has come to the fore globally at a time when many are realizing the systemic failures of the dominant model of crime control. By calling on those who are harmed, wrongdoers, and their affected communities to share the responsibility of responding to violence, restorative justice promotes repair, reconciliation, and the rebuilding of relationships. By honoring the healing power of story; teaching us to listen deeply to the woundedness within others and ourselves; and working with the energy of conflict and people’s intense emotions, restorative practices can transform pain into hope.