Restorative justice is an ever-evolving philosophy with a broad range of applications, as are the RJ models used by courts. RSI’s search for court-related RJ programs in 2021 found 92 programs – which are either court-annexed or court-partnered with a community center that offers restorative programs – that work with clients charged with a crime. Usually, the program involves some kind of circle or group conference where the client takes responsibility for the harm caused and meets with the harmed party and members of the community. Other models used by courts include community conferencing and victim-offender mediation. For all models, the charging entity usually either drops the charge or, less frequently, engages in an expungement process upon completion of the program.
There are many other restorative justice models seen in courts, e.g., dialog circles, justice circles, etc. For the purposes of this special topic, two RJ approaches are described: peacemaking circles and victim-offender conferences.
Peacemaking circles in the US were started in 1996 and derive from traditional Native American forms of justice that focus on healing and restoration. Peacemaking focuses on healing relationships between the participants to create long-lasting harmony. Circles typically have two peacemakers, or circle keepers, who remain impartial while they facilitate the discussion and monitor the integrity of the circle. The peacemaking circle process also encourages them to speak about their own experiences and opinions. The circle participants and the peacemakers set the rules and the agenda for the meeting by consensus based on pre-meeting preparation work.
One peacemaker typically begins the discussion by asking participants questions about their relationships to each other, the impact of the dispute, how the harm may be repaired, how healing may occur, and the final resolution. All participants may have a chance to speak uninterrupted using a “talking piece,” or object that signifies it is that person’s turn to speak. Especially with juvenile cases, multiple sessions are often necessary to meet the final goal: repairing the harm, healing relationships, reintegrating the responsible party back into the community, and settling the case whenever possible.
The Red Hook Peacemaking Program, located in Brooklyn, NY, and launched in 2013, sought to integrate Native peacemaking practices into a non-tribal setting and design a process conducive to the state court system. Consistent with the pillars of restorative justice, the program outlined the following goals: heal relationships harmed by a crime, give victims a voice, hold participants accountable for the harm they have caused, and empower the community to take an active role in addressing conflict and repairing harm. The diversity of cases arraigned at the Red Hook community center – including felony and misdemeanor cases for youth and adults – coupled with the close-knit culture of the surrounding community, made Red Hook a prime location for a peacemaking pilot program. Since beginning operations, the Red Hook program has grown, and now accepts case referrals from multiple criminal courts, public housing managers, school officials, and police officers.
The Red Hook Peacemaking Program actively recruits peacemakers within the community and offers to train them for free. This ensures that the peacemakers share similar socio-economic backgrounds with the participants, which in turn fosters feelings of familiarity, relatability and accessibility. Additionally, peacemakers receive yearly instruction from Native American peacemaking trainers on the history, heritage and traditional practices of peacemaking. Through this, the program remains true to the origins of peacemaking and strengthens the relationship between the tribal community and the urban community.
How it Works
First, a defendant is referred by a local court to the Red Hook program with the agreement of the judge and attorneys, and the consent of the victim, if applicable. If the defendant meets all eligibility criteria, they have the choice to participate in peacemaking. Central to peacemaking – and restorative justice generally – is taking accountability for harm caused to others. Thus, participating in peacemaking programs can be recommended and encouraged, but it is ultimately a defendant’s choice. Similarly, victims have a choice to either participate directly in the peacemaking program or allow someone else to represent their interests during sessions.
Family members, friends, and community members are next invited to join in the peacemaking process. All present parties are permitted to speak freely, including the peacemakers, who are encouraged to share their own stories and experiences. The main topics include potential actions to heal harmed relationships, provide restitution, or avoid future conflicts. Such actions may take the form of apology letters, volunteer work, impulse control, abstaining from illegal activity, or resume writing. Once a peaceful resolution is agreed upon by all participants and peacemakers – which usually takes multiple sessions – the case is sent back to the court for dismissal or other arrangement decided upon by the peacemaking circle.
Victim-Offender Conferencing (VOC) began in the late 1980s and is based on a practice of the Maori in New Zealand. VOC is a process that offers victims an opportunity to meet responsible parties in a safe, structured setting and engage in a facilitated discussion of the crime. The primary focus is supporting the healing process, encouraging mutual understanding and empathy between parties, and providing closure to both victim and offender. Reaching a settlement is not the primary focus of VOC. However, restitution agreements are often a by-product of a productive conferencing session.
Unlike peacemaking circles, which emphasize the role of the community within the circle, victim-offender conferences focus primarily on the harmed party (victim) and responsible party (offender). Where peacemaking circles value the stories of all parties, including the facilitators themselves, VOC focuses on the importance of the harmed party’s story. Trained facilitators help victims explain how the crime has impacted them physically, emotionally, and/or financially; ask questions about the crime and the offender; and may be involved in designing a restitution plan. In turn, offenders can take direct responsibility for the harm, understand the full impact of their behavior, and take part in developing their own restitution plan. Often, the “community” role is filled by the family members or close friends of the parties, acting as a micro-community of individuals who support the primary parties and have been indirectly impacted by the crime. When present, support persons may also be granted the opportunity to express their concerns and be involved.
The referral process to victim-offender conference programs varies. For some programs, a formal admission of guilt accepted by the court is required before conferencing can proceed. In others, cases are referred as a diversion from prosecution. Referrals can come from judges, probation officers, victim advocates, prosecutors, defense attorneys or police. VOC is primarily used in juvenile settings.
How it Works
Nebraska, for example, developed a Victim Youth Conferencing (VYC) program, which operates out of Nebraska’s Office of Dispute Resolution (ODR). The program started as a pilot in 2015 after the Office of Dispute Resolution received a grant to create a VYC program focused on young offenders. After expanding statewide in 2018, the VYC program developed further due to the Nebraska legislature amending the Dispute Resolution Act in 2019 to include both youth and adult restorative justice. This provided statutory authorization to divert juvenile offenders to victim-offender mediation and conferencing as an alternative to traditional court processes. As a result of this support, the Nebraska Office of Dispute Resolution was able to develop a policy for approving RJ facilitators and standards of practice for RJ facilitators.
The project prioritized increasing awareness and accountability among youth involved with wrongdoing, increasing satisfaction and confidence within the justice system, and externally evaluating the impacts of the program on the juvenile, the victim and the community. The long-term goals of the initiative include reducing youth recidivism, increasing community safety, promoting awareness about VYC, and sustaining statewide VYC services.
Referrals to the program come from schools, law enforcement, county attorneys, courts and probation. Cases are referred to one of the six mediation centers coordinated by the ODR. After notifying both parties (youth and victim), preparation meetings begin with the youth and their parent(s), and the impacted party. Victims have full discretion as to whether they want to participate in conferencing. Should a victim choose not to meet with the youth, a trained victim surrogate and members of the community may assume the role for purposes of the process. Next, the parties meet for a conference meeting, discuss the impact of the crime, and mediate a reparation agreement. Once the reparations are underway and/or completed, the case information is sent back to the partner agency that referred the case.
The 2021 final evaluation of the VYC pilot program found that of the 871 cases referred, 677 resulted in a victim-youth conference, and of those 677, 99.6% resulted in a mutually agreed reparation plan. Of the 668 with a reparation plan, 88.8% successfully fulfilled all (546 of 668) or at least more than half (47 of 668) of the plan conditions. The vast majority of participants (91.12%) expressed satisfaction with the conferences, and 93.2% of participants reported they would recommend VYC for others. The recidivism report found that 99% of youth who participated in a VYC did not reoffend within one year.