Restorative justice, or RJ, is a philosophical approach to justice that is focused on healing the harm that crime and conflict causes to individuals and communities. As Prof. Carrie Menkel-Meadow has said, “Restorative justice is more of an idea, philosophy, set of values, or sensibility than a single concrete and uniform set of practices or processes.”
Unlike the traditional juvenile or criminal justice system in which the two parties are the state and the person charged with committing an offense, restorative justice involves the victim, the responsible party and the community. In RJ practices, all three are important. RJ attempts to reach beyond punitive measures, such as incarceration, probation and home confinement to meet the needs of all those involved.
Restorative justice programs, although diverse in practice, follow three guiding pillars.
- Restorative justice recognizes and addresses the harm to each person or entity involved in and impacted by the harmful act and what these individuals need. These people and entities typically include the responsible party, the victim, any family members, and the community. RJ seeks to meet the harmed party’s need to gain more information, tell their story, feel re-empowered, and ultimately seek restitution. It meets the responsible party’s needs by providing accountability to address the specific harms caused, giving the encouragement necessary to address those harms, recognizing that responsible parties struggle with harms to them, and encouraging re-integration into the community. RJ also recognizes the importance of involving the community, which has needs that arise from the commission of a crime. Examples of needs felt by a community include physical and emotional rebuilding after the harm, assurance from the responsible party that they will not cause more harm, and recognition of the impact of the harm on the community.
- Restorative justice encourages the participants to identify and fulfill their obligations to right the wrong caused by the harmful act. This not only includes the responsible party’s obligation to make amends but can also include the community’s obligation to offer support and encouragement to both the victim and the responsible party.
- Restorative justice involves engaging the participants in the process. This typically includes an encounter in which the victim has the opportunity to confer (directly or indirectly) with the responsible party and the community, tell their story in a significant setting, and receive symbolic and/or concrete restitution.
How Courts Use Restorative Justice
Restorative justice is used in myriad settings in the US and around the world. These include, for example, courts, schools, communities, houses of worship, prisons, medical settings and workplaces. Because Resolution Systems Institute works with court alternative dispute resolution (ADR) programs, this special topic focuses on RJ in courts.
Court use of Restorative justice in North America began in the 1970s in Canada when a judge agreed with a youth probation officer’s request to have two youth convicted of vandalism meet with their victims in a mediation. Early experiments with victim-offender mediation – often in programs called Victim-Offender Reconciliation Programs (VORP) – do not align exactly with the three pillars discussed above, but they did pave the way for today’s restorative justice.
Restorative justice can be used before, during and after the judicial process. RJ is often used in the legal system as a diversion process operated by a prosecuting attorney’s office (or similar entity) that occurs before a case gets to court. RJ programs operated by courts are most often seen in juvenile cases, but are also used in child protection, probate and family cases, as well as some adult criminal matters. Additionally, RJ can be used post-conviction as part of rehabilitation efforts and to meet other goals.
Benefits of Restorative Justice
When a court implements a restorative justice program, the court and other program partners typically expect some or all of the following benefits:
- Reduced recidivism
- An opportunity to make the situation right
- Increased safety for the community
- A stronger community
- Empowerment of all participants
- Cost effectiveness for the court
- Meaningful dialogue
Hesitancy to Use Restorative Justice
Courts and community partners may be hesitant to implement a restorative justice program for reasons such as:
- A perspective of crime and punishment that values punishment as a deterrent to future wrongdoing and/or as retribution
- Concern that people may plead guilty to get out of court, even if they are not guilty
- Reluctance to put victims through the trauma of facing their offender
- Concern that victim and/or offender will not be sufficiently prepared to participate in RJ in an effective manner
- Lack of funding to implement and maintain an effective program
How Restorative Justice and Alternative Dispute Resolution Compare
Each form of restorative justice and alternative dispute resolution has its own strengths and appropriate uses. There are factors that are similar in RJ and ADR, and there are factors that differ. To illustrate this point, it is helpful to compare a common ADR approach, civil mediation, which does not incorporate the three pillars of RJ, with an RJ approach, peacemaking circles.
Similarities
There are some similarities between civil mediation and peacemaking circles. Both provide opportunities to consider issues beyond the court case that are important to the parties. Neither confers authority on the neutrals to dictate the terms of any agreement, instead looking to the parties to determine any path forward. Both seek durable outcomes. But there are also many differences between restorative justice practices and civil mediation.
Differences
Responsibility
The concept of responsibility is handled very differently in civil mediation as compared to peacemaking circles. In a civil mediation of an employment discrimination case, for example, the parties may reach an agreement without the employer taking any responsibility for what occurred – or even agreeing that particular acts took place. This can happen even when the mediator helps the parties engage in a deep conversation about discrimination in which the parties come to better understand one another’s perspectives and experiences.
On the other hand, responsibility is at the core of the restorative justice pillars. The first pillar involves recognizing and addressing the harm to each person or entity involved in and impacted by the harmful act.
Role of the Neutral
In civil mediation, the role of the mediator is to be impartial to the parties and the outcome while helping create and maintain the structure of the mediation. The mediator sets the rules for the mediation, and the parties are expected to follow those rules. Peacemaking, on the other hand, encourages circle keepers to share their own experiences and opinions while monitoring the integrity of the circle. The rules are not set by the circle keeper, but rather the circle participants and circle keeper make the rules together by consensus.
Participants
The parties involved in civil mediation are typically those directly involved in the court case and their attorneys, if they are represented. In some instances, the participants might also include a spouse, a support person, or the individual with authority to settle the case. Peacemaking circles, on the other hand, would also include community members, additional family members, and sometimes professionals relevant to the harm (e.g., social workers). One goal is for all members of the circle to understand the conflict, not just those involved in the court process. While some civil mediations may result in healing relationships, repairing harm and reintegrating the responsible party into the community, those are not usually the central goals of civil court mediation programs.