Gordon Bazemore. 21st Century Criminology: A Reference Handbook. Editor: J Mitchell Miller. 2009. Sage Publications.
Restorative justice is a “new” way of responding to crime and harm based on ancient practices. Criminal justice policy in much of the modern world, and in the United States in particular, views punishment as a primary response to crime. For advocates of restorative justice, however, crime is more than simply lawbreaking; rather, crime harms individual victims, communities, offenders, and relationships. “Justice,” therefore, cannot be achieved simply by punishing the offender, or even by only providing treatment and services. Justice must focus on repairing the harm crime causes, while ensuring accountability to those harmed by crime rather than to the state alone.
This chapter first provides a definition of restorative justice and discusses the differences and similarities between restorative and other models of justice. It then describes core value–based principles that should guide restorative intervention and policy development and discusses the varieties of restorative practice. In addition, research is summarized that generally demonstrates the effectiveness and adaptability of restorative justice. Following this is a discussion of how these principles relate to several criminological and social science theories that may help to explain how and why restorative practice “works” when it does. Finally, weaknesses of current policy and its implementation and threats or challenges to broader continuing application of restorative justice strategies are considered.
Background: A Brief History of Restorative Justice
If asked to define “justice,” most Americans use words such as fairness, similar or equal treatment, absence of discrimination, enlightenment, due process, and equal opportunity. Yet, when asked what is meant when someone has been “brought to justice,” Americans inevitably think first of punishment—often severe punishment—that must serve as retribution for wrongdoing. People know that justice is a larger concept than punishment, yet are mostly aware of a very limited set of choices about what justice means in response to crime.
Punishment, Settlement, and Exchange in Human History
Although most people are clearly taught, or socialized, to believe in the moral “rightness” of retribution, and to some degree in its effectiveness, there is no evidence to suggest that human beings are innately punitive. Indeed, most speculation is that in early human communal societies, when someone was harmed by another person(s), the response was typically some form of group dialogue. This deliberation included consideration of responsibility for the act, discussion of the nature of the harm, and consideration of “accountability” based on obligations for the offender (and often his or her family) to make amends to those harmed. These so-called ancephalous (or headless) societies also preferred restitution and other reparative responses to crime that sought to restore community peace and harmony as an alternative to “blood feuds,” which generally had devastating consequences for community life. Moreover, the most highly developed ancient states—those in Egypt, Babylon, China, Persia, and Greece, as well as Hebrew and AngloSaxon societies—devised formal codes that specified monetary amounts, as well as goods and services, to be paid as restitution and offered as a means of “repairing the harm” caused by specific actions that would today be considered as crimes, including even serious and violent offenses.
In contrast to the view that punishment is an innately human trait, it seems more likely that humans are “hardwired” for reciprocity and social exchange. When people use the phrase “I owe you one,” or “You owe me one,” it generally implies that there is an expectation to repay a debt or good deed that can “make things right” in a different way from individual revenge. While revenge may be part of the human condition, it may be more accurate to say that it was collective state punishment, rather than restorative responses that were “invented” (for Anglo-European cultures, at least) during the Middle Ages. Retributive punishment is therefore a more recent human “innovation” that essentially formalized the response to community and individual conflict resolution by designating theft and other offenses as “crimes” against the king (or the state). Although more commonly employed in some eras and cultures (e.g., forms of restorative justice never disappeared in many indigenous societies), reparation and informal settlement processes, as well as formal and informal restitution and other reparative sanctions (e.g., community service), have nonetheless persisted at some level alongside retributive punishment throughout Western history.
Punishment, Justice, and Restoration Today
Restorative justice advocates in the modern world, and in the United States in particular, are nonetheless up against a perception of “justice” as an offender “taking the punishment.” This narrow retributive perception of justice unfortunately continues to justify and support what much of the modern world increasingly recognizes as a uniquely American addiction to punishment. To a large extent, however, what has been a three-decade-long U.S. geometric increase in imprisonment is more accurately a function of policymaker addiction, which has in the past decade ushered in an era recently described as a condition of “mass incarceration.” This state of affairs permeates the existence and defines the future of affected populations, notably in this case African American males. Indeed, public opinion polls continue to suggest that, when given alternatives in specific case scenarios, most citizens appear to be less punitive than politicians and the legislation they develop. Specifically, for the vast majority of crimes, Americans responding to citizen surveys choose the option of a community-based alternative sanction that might, in some research, include restitution, community service, apologies, and victim–offender meetings. While by no means soft on crime, restorative justice appears to fit well into this growing movement for reform, and with the emerging dissatisfaction with expanded punishment as the primary response.
What is Restorative Justice?
In cities, towns, and rural areas in dozens of countries, victims, family members, and other citizens acquainted with a young offender or victim of a juvenile crime gather to determine what should be done to ensure accountability for the offense. Based on the centuries-old sanctioning and dispute resolution traditions of the Maori, an indigenous New Zealand aboriginal band, family group conferences (FGCs) were adopted into national juvenile justice legislation in 1989 as a dispositional requirement for all juvenile cases with the exception of murder and rape. FGC, or “conferencing,” is widely used in many countries as a police-initiated diversion alternative, a means of determining disposition (sentence) for juveniles and adults, and has been used for more than a decade in communities in Minnesota, Pennsylvania, Colorado, Illinois, and other U.S. states and much of Canada. Facilitated by a coordinator that may be a youth justice worker, volunteer, or police officer, FGCs are aimed at ensuring that offenders are made to face up to community disapproval of their behavior, that an agreement is developed for repairing the damage to victim and community, and that community members recognize the need for reintegrating the offender once he or she has made amends.
Item: In schools in Denver, Colorado; Chicago, Illinois; and many other U.S. cities and towns, middle and high school students in conflict with other youth, students being bullied or bullying others, and youth removed from the classroom for disciplinary violations meet with students, teachers, and staff they have harmed or who have harmed them, as well as parents and community members, in restorative peacemaking circles. These informal dialogues make use of a “talking piece” (an object held by the speaker) as a means of preventing interruption when a participant is speaking and regulating dialogue about the harm caused to victims, acceptance of responsibility and often apologies by offenders, and an agreement for offenders to accomplish various tasks aimed at making amends or repairing the harm they have caused.
Item: In Rwanda, formerly incarcerated members of one of two primary tribal groups, the Hutu, implicated in genocidal killings of the other primary tribal group, the Tutsi, participate in lengthy (sometimes multiple-day) “truth-telling” sessions in communal courts (known as Gacaca). Aimed at repentance, reparation, and eventually possible reconciliation with surviving family members of their victims, participants in these sessions ultimately accept responsibility for murder and other crimes, apologize, and make commitments of extensive service or reparation (as money, goods or services) aimed at eventual healing and peace.
Item: In San Jose, California, and hundreds of other communities in the United States, youth arrested for crimes and considered for diversion from court or probation meet with citizen volunteers in Neighborhood Accountability Boards who, with youth and family input, develop a communityand victim-oriented restorative sentence as an alternative to a court order. When asked why they believe this approach “works” better than traditional juvenile justice intervention, they report that the program is effective because “we aren’t getting paid to do this”; “we can exercise the authority that parents have lost”; “we live in their (offender’s and victim’s) community”; “we give them input into the contract”; “we are a group of adult neighbors who care about them”; “they hear about the harm from real human beings”; and “we follow up.”
Item: In a prison in Texas, the mother of a daughter raped and murdered a decade before and her granddaughter, along with a trained facilitator, meet with the offender responsible for 3 days of dialogue after several months of preparation by the facilitator. The goal of this meeting is to provide the survivors with answers to their questions about how this young woman had died and hear the offender’s story. At the end of a 2-day session, the mother and granddaughter forgive the murderer.
Item: In residential facilities for youth convicted of serious and often violent crimes in Georgia, Tennessee, Illinois, Pennsylvania, and other states, staff and the youth they are responsible for are learning new methods of discipline based on restorative justice principles (versus standard reward/punishment models) aimed ultimately at changing the culture and organizational climate of their facility.
Item: In Northern Ireland, formerly incarcerated Republican (IRA) and Loyalist combatants in the decades-long conflict in the city of Belfast meet with young offenders in community restorative justice conferences. While only a few years before, youth like these caught stealing, joyriding, or committing other crimes were beaten and even shot (“knee-capped”) by these combatants (who assumed de facto responsibility for preserving order in communities where police were not welcome), today these youth are held accountable by meeting with their victims and community members and agreeing to make amends through reparation and service to the individuals and communities harmed by their actions.
Item: In inner-city Cleveland, Ohio, former incarcerated felons participate in civic community service projects that typically involve providing assistance to the elderly, helping youth in trouble and those struggling in school, and rebuilding parks. For their efforts, the former inmates “earn their redemption” by making amends to the community they previously harmed, rebuilding trust, and making new, positive connections with community groups and prosocial community members.
Item: In Bucks County, Pennsylvania, neighbors in a primarily white, protestant, middle-class neighborhood in a Philadelphia suburb place a Star of David in their windows during the holiday season in solidarity with a Jewish family who the night before had been the victim of a group of skinheads who burned a cross in the family’s front yard. With input from the families and community members, the young men are diverted from the court with the understanding that they will meet with the victimized family and a rabbi who will also arrange community service and ongoing lessons in Jewish history for the boys.
What do these diverse brief portraits of restorative justice have in common? While involving different cultures and ethnic groups addressing a wide range of harm and conflict, these practices share a basic commitment. This commitment is to primary involvement of the true “stakeholders” in crime and conflict, in a very intentional effort to pursue a distinctive justice outcome. Aimed at achieving “accountability” by allowing offenders to actively repair harm to the individuals and communities they have injured, this outcome has been found to be more satisfying to both victims and offenders than those pursued in a court or other formal process. While the term restorative justice has in recent years entered popular discourse (after being featured on the Oprah show and in other popular media venues), restorative policy and practice is often widely misunderstood. It is important, therefore, to first be clear about what restorative justice is not.
Misunderstanding Restorative Justice
Restorative justice is not a single program, practice, or process. As indicated by the examples above—especially those involving serious and violent murders and reconciliation following genocide—it is also not an intervention meant only as an alternative response to minor crime, juvenile crime, or other misbehavior. And it is not limited to use in, or as an alternative to, one part of the criminal or juvenile justice process. Indeed, as illustrated in the last case above, restorative justice may occur spontaneously and completely outside and independent of any formal criminal justice context.
Restorative justice does not assume that the victim will or should forgive the offender. Although some victims—including those harmed by some of the most horrific crimes mentioned in the previous examples—choose in their own way and in their own time frame to forgive the offenders that harmed them, a successful restorative intervention does not presume either forgiveness or reconciliation. Restorative justice is also not a “soft” option for offenders (many in fact view restorative justice as more demanding than traditional punishments), and restorative proponents do not suggest that more use of restorative justice implies that there is no need for secure facilities. Finally, restorative justice is not focused only on the offender—or on reducing recidivism—even though it has been effective in doing so. It is focused first on the needs of those victimized by crime and their families, and on the needs of other true “stakeholders” in crime and conflict: offenders and their families, communities, and supporters of offender and victim.
Defining Restorative Justice
Restorative justice is most accurately described as a model for “doing justice” by repairing the harm of crime. To the greatest extent possible, restorative intervention seeks to heal the wounds crime and conflict cause to victims, communities, families, and relationships. This approach provides a clear alternative to now-dominant retributive justice models that seek essentially to achieve “just deserts” by punishing offenders, but restorative justice is not simply a model of offender rehabilitation, or an easy communitybased alternative to punishment.
Restorative justice is, however, generally compatible with many goals and assumptions of other approaches to criminal justice including crime control, rehabilitation, and libertarian/due process models. Restorative justice practices support rehabilitation and treatment, though this is not their only or primary goal, and according to research, restorative programs have been effective in reducing recidivism; restorative justice is an evidence-based practice. Advocates of restorative justice are also strong in their support of due process and limits on state intervention, and do not advocate restorative processes for offenders who have not admitted responsibility for the crime, or been found guilty in a fair adjudicatory process.
Regarding crime control, restorative justice advocates would support prevention efforts as well as public safety goals. But they would also argue that a society more focused on restorative practices at a community level (e.g., in schools, families) would be a safer society. Restorative justice proponents also recognize the need for secure facilities, and even incapacitation, for violent predatory offenders. Like many other critics of U.S. criminal justice policy, however, restorative justice proponents would argue that the incarceration binge of the past decade has resulted in more harm than good—for example, communities that are less safe, victims who have not healed, and offenders who are perhaps even more violent.
Restorative justice is perhaps most distinctive in its way of determining/measuring how much “justice” has been achieved in a given response to crime. Specifically, restorative justice advocates would gauge the success of any response to crime by attention to the extent to which harm is repaired, rather than the degree to which “just deserts,” or fair punishment, is delivered.
Values and Principles
Underlying restorative intervention is a set of basic values, most notably “respect,” democratic decision making, fairness, and so on. Core principles, on the other hand, are valuebased assumptions that express ideal goals and objectives to be achieved in a justice process. Such principles also provide general normative guidelines for gauging the strength and integrity (sometimes called the “restorativeness”) of any response to crime and harm. Broad core principles (as articulated by Van Ness & Strong, 1997) that guide restorative justice practice, and also suggest independent but mutually reinforcing justice goals, can be stated as follows:
• The Principle of Repair: Justice requires that healing be enabled for victims, offenders, and communities that have been injured by crime. The extent to which harm is repaired is assessed by the degree to which all parties identify the damage of a crime that needs to be addressed, and develop and carry out a plan to do so.
• The Principle of Stakeholder Involvement: Victims, offenders, and communities should have the opportunity for active involvement in the justice process as early and as fully as possible. The extent to which effective stakeholder involvement is achieved is assessed by the degree to which victims, offenders, and individuals from the community affected by a crime or harmful action are intentionally and actively engaged in decision making about how to accomplish this repair.
• The Principle of Transformation in Community and Government Roles and Relationships: The relative roles and responsibilities of government and community must be rethought. In promoting justice, government is responsible for preserving a just order, and community for establishing a just peace. The extent to which the community–government relationship is transformed in a restorative process is assessed by the degree to which a response to crime operationalizes a deliberate rethinking and reshaping of the role of the criminal justice system in relation to that of community members and groups.
While these core principles reflect normative values, they can also be linked to social theories that should guide practice, and in the long run help to explain why a given intervention, or a practice implemented over months or years, is successful or not. Later in this chapter, it will be demonstrated how each principle can be connected to causal theories drawn from criminological and other social science literature and intervention theories of crime and desistance.
Stakeholders: Who, What, and Where?
The problem of crime is of course much larger and more complex than the problem of the offender. Yet, criminal justice policy is in essence an offender-driven response, narrowly focused on arresting and processing lawbreakers. The principle of stakeholder involvement places a priority on engaging those most affected by crime—victim, community, and offender—in the justice process, and on the quality of this engagement. It also suggests an emphasis on the needs of key stakeholders and their obligations. Such needs are often different for each individual participant in the justice process and may vary in unpredictable ways—hence, the need for a meaningful, respectful engagement process that presumes multiple choices based on research and practice. Based on research and practice experience, it is possible, however, to describe general needs that have become quite common for each stakeholder in a crime or conflict.
Many victims say that they often become most angry with the criminal justice system itself—with its delays, reluctance to share information, and often disrespectful treatment. Victims need first of all to be provided with information about their cases. They also may want, and demand, their “day in court” and to participate in their case, but many say that the adversarial process itself is a source of great trauma on some occasions. Indeed, as Judith Herman (2000) puts it, “If you set out to create a system to generate post-traumatic stress, you couldn’t do better than a court of law.” Thus, victims often prefer an informal process where their views count, such as the process offered by a range of restorative justice practices.
Victims also want more information about the processing and outcome of their cases, answers to their questions (e.g., about why they were chosen by the offender), “truth telling,” and vindication. Such vindication has nothing to do with “vindictiveness,” and the latter term, or terms such as “angry victims,” are often insulting to those harmed by crime. Rather, vindication is often about the need for the offender to express—to the victim and others—responsibility for the crime, and to make clear to everyone (and remove doubts that some victims have) that the crime was (if this is true) not a deliberate act by the offender toward this victim, and not the result of provocation or negligence on the victim’s part.
While all of us are likely to be angry when someone harms us, victim advocate Mary Achilles (Achilles & Zehr, 2001) notes that victim rage and demand for severe punishment are often a result of a lack of choices:
Victims frequently want longer time for offenders because we haven’t given them anything else. Or because we don’t ask, we don’t know what they want. So [the system] gives them door Number [1 or 2], when what they really want is behind Door Number 3, 4, [or] 5. (p. 12)
Indeed, if the choice behind “Door Number 1” is letting the offender off with no consequences, victims are unlikely to choose that. If “Door Number 2” is sending him to counseling or a wilderness program, the victim may approve of that but ask, “What’s in it for me—what about my needs as a victim?” When a prosecutor or other court official suggests jail time, on the other hand, it doesn’t take a vindictive or punitive person to choose “Door Number 3.” The lesson for restorative justice advocates, then, is to listen to victims and make new choices available that acknowledge the complexity of victims’ needs.
Traditionally, offender needs when addressed at all in a nonpunitive way have focused primarily on treatment. While most citizens—including those who have been victims—support rehabilitation for offenders, the legitimate portion of public anger about the criminal justice system is based on the view that most offenders are not held accountable. Most offenders are never incarcerated, and thus are perceived as receiving a “slap on the wrist.” Moreover, serving time—taking one’s punishment—is in no real way related to being accountable, or taking responsibility for, the harm an offender causes to his or her victims (and in some cases, it may even encourage anger toward the victim). Greater understanding by the public and by victims, as well as justice itself, therefore requires that offenders bemeaningfully held accountable for what they have done.
Rather than simply “taking their punishment” or completing treatment, offenders then need the opportunity to take responsibility for the harm caused by their behavior to victims. They need to take action to repair the harm and to have a voice in the decision-making process about how this is accomplished. Facing their victim(s) in a restorative justice process provides a rare opportunity to also develop empathy and remorse—two factors strongly related to a reduced probability of reoffending—while also having input into the process. Offenders then take action to repair harm by making amends through apologies, community or victim service, restitution, and so on. Offenders also need support for reintegration into their communities. Juvenile offenders in particular need opportunities to build a range of assets, skills, and competencies, and they need an opportunity to practice and demonstrate these. Young offenders need also to develop positive relationships with prosocial adults.
John McKnight, in his book The Careless Society: Community and Its Counterfeits (1995), makes a convincing argument that Americans have in recent decades entrusted much of their traditional responsibility for raising children, helping the elderly, improving schools, and participating in civic life to experts. In doing so, Americans have handed over input into community life to agencies focused on problems and deficits rather than assets that might enhance public life:
The service/medical establishment emphasizes the “halfempty” portion of communities and thereby thrives on disease and deficiency as its raw material. The raw material of community, on the other hand, is capacity. Communities are built utilizing the capacities and skills of needy, deficient people … [and] are built in spite of dilemmas, problems, and deficiencies. (p. 76)
Communities are also clearly imperfect. Yet, children grow up in communities, and not, if they are lucky, in service and juvenile justice programs. McKnight (1995), Robert Putnam (2000), and others who write about the decline in civic life and in the commitment to and reliance on neighbors and civic organizations, have in the past decade begun articulating the need to rebuild social capital as the “glue” that holds community life together.
Communities with high levels of connectedness or social capital typically have low crime rates because, as sociologist John Braithwaite (1989) suggests, in these communities, people “don’t mind their own business.” These are places active in maintaining informal social control and social support, especially for the young. Yet, as David Moore reminds us, the increasing reliance on the state, and especially on criminal justice and social service agencies, has in recent years “deprived people of opportunities to practice skills of apology and forgiveness, or reconciliation, restitution, and reparation … [and] appears to have deprived civil society of opportunities to learn important political and social skills” (Moore & McDonald, 2000, p. 30). As the state has taken on more responsibility for raising children, Americans have lost some of the basic wisdom and much of the competencies their parents and grandparents had (as well as their extended networks of support), and must literally relearn and practice these techniques. Rather than the typical focus of the past three decades on further expansion of the reach, responsibilities, and resources of the criminal and juvenile justice systems, restorative principles (especially the third principle described above, which addresses transformation of the community–government relationship) offer opportunities to strengthen and resource communities to allow them to reclaim responsibility for tasks they once performed not perfectly, but often better than criminal justice and social service agencies are capable of doing.
Restorative justice practice can and should therefore be viewed as a tool not simply to help individual victims and offenders, but also to help families, neighbors, schools, churches, networks of activities, and other foundations as communities begin to rekindle basic skills of social support and control that many believe are being lost. Examples of using restorative practice in these ways include cases in which community groups have stepped up to the plate to reclaim some of these responsibilities. In a city in the Minneapolis/St. Paul area, a case involving serious vandalism in which a local teenager had ransacked an elaborately designed tree house that was open to and used by neighborhood youth, a group of community members took matters into their own hands, and with no professional help, organized their own neighborhood restorative conference. When police officers, who also ran their own highly effective restorative conferencing program, came to the neighborhood to inform residents that they had scheduled a conference for the youth and all families involved, they were told by several neighbors that one resident (a man whose own son had previously participated in one of the police program’s conferences with his own son) had “already handled the problem.” This community member had acted as a facilitator in a conference held in his own basement with the young perpetrator, his mother, several youth and their families, and other neighborhood residents. The conference resulted in restitution paid by the youth and his mother to rebuild the tree house; community service that involved neighbors working with the youth to repair damages; apologies from the youth and mother; and later, a neighborhood party to which the police officers were also invited.
Restorative Justice Practice
Responding to Harm through Restorative Practice
Restorative justice does not require a program or a formal process. Indeed, some of the best examples of restorative justice occur serendipitously. The previously mentioned case of neighbors who reached out to the Jewish victims of skinhead hate crimes in a predominately white, Anglo-Saxon, Protestant neighborhood in a Philadelphia suburb was a restorative response that had no connection to a program, nor were the Denver faith community groups who provided assistance and support for victims of the Oklahoma City bombing, in town for the Timothy McVeigh trial, employed by a restorative program. In both cases, however, much restorative healing took place that did not require a formal program.
Yet, more organized, ongoing restorative practice can be divided into two primary programmatic categories:
1. Restorative decision-making or “conferencing” models— Designed to enable victims, offenders, their supporters, and affected community members to have maximum input into a plan to repair harm, these processes can assume many variations within four general structural models: (1) family group conferences, (2) victim – offender mediation/dialogue, (3) neighborhood accountability boards, and (4) peacemaking circles, all of which share a focus on decision making that seeks to maximize stakeholder involvement.
2. Restorative sanctions or obligations—These include restitution, community service, apologies, victim service, behavioral agreements, and other efforts to make amends for harm caused by one’s offense. Restorative obligations represent the concrete, behavioral aspect of holding offenders accountable by “righting the wrong,” which provides evidence to the community and victim that the offender has earned redemption.
A Restorative Process and Outcome
Regarding decision-making processes, Howard Zehr (1990) notes that in the current criminal justice process, three questions are asked: Who did it, what laws were broken, and how will the offender be punished. The essence of a restorative process—focused on repairing the harm—is captured in three different questions: What is the harm, what needs to be done to repair it, and who is responsible for this repair.
To conduct a restorative process, stakeholders typically rely on one of the four general nonadversarial decisionmaking models listed above. This group of practices has in common a process whereby offender(s), victim(s)/victim rep(s), a facilitator, and other community members sit in a nonadversarial, face-to-face, informal meeting to consider the impact of a crime or harm on victims and communities and try to develop a plan to repair this harm that meets the needs of those most affected. Other common elements include adhering to a set of values and core principles, including different points of view, giving voice to various stakeholders, ensuring honest communication, respectfully acknowledging victims, expressing emotion, considering stakeholder needs, accountability, empathy and understanding, and creative problem solving.
The second category, restorative obligations, covers typical immediate products of the process that expect (and help) offenders to “make amends” for the crime or harm and demonstrate accountability through restitution, community service, apologies, victim service, behavioral agreements, and other means. While some would argue that a court order for restitution or service is generally more restorative than a traditional punitive sentence, most restorative justice advocates strongly prefer that these obligations come as directly as possible from the stakeholders themselves. Indeed, many regard the process itself as the essence of restorative justice, and some theoretical perspectives view the restorative dialogue as the fundamental means of healing in restorative practice, regardless of outcome.
Research and Effectiveness
There is now general agreement that restorative justice practice has shown positive impact on a variety of intermediate and long-term outcomes including victim satisfaction and healing, increased offender empathy, and procedural justice or fairness. In recent years, randomized trials, quasi-experiments, and meta-analyses have also consistently demonstrated positive impact on reoffending. While research on restorative justice is in its early stages, relatively speaking, unlike studies of punitive programs and weak or counterproductive treatment models, no research shows that restorative justice practices make things worse (e.g., increase recidivism).
While only two models of restorative conferencing, FGC and victim–offender mediation, have received consistent and positive ongoing evaluation, other conferencing practices such as neighborhood accountability boards and peacemaking circles have also shown promising early results. In addition, an older body of evaluation research on the aforementioned reparative practices—essentially, restorative obligations or sanctions such as restitution and community service—has consistently found positive impact. Moreover, unlike a wide range of punitive approaches, as well as a large number of treatment programs that consistently report negative outcomes in evaluations and meta-analyses, no studies of reparative practices (e.g., restitution, community service) report negative findings.
Regarding crime victim impact, researchers for more than a decade have been able to make the claim that crime victims who participate in face-to-face restorative justice dialogue processes with offenders experience greater satisfaction than those who participate in court or other adversarial processes. Though “selection effects” leave open the possibility that victims who choose to participate in these processes are predisposed to report greater satisfaction than those who do not, the consistency and strength of these results are nonetheless persuasive. In recent years, experimental research has also verified the effectiveness of restorative conferencing in reducing posttraumatic stress syndrome in crime victims.
Much uncertainty remains, however, about the primary causal factor or specific intervention most responsible for producing the typically higher levels of victim satisfaction in this research. For example, it could be argued that these results are due less to the fact that restorative processes are so effective than to the fact that the court and adversarial process is so harmful. Perhaps restorative dialogue processes simply take advantage of what is often called a “Hawthorne effect,” whereby victims who are simply listened to, treated with dignity and respect, and given a wider array of choices are more satisfied than those who go through court, regardless of the effect of any special faceto-face dialogue with the offender. While this could mean that positive effects of a restorative process are actually a result of what is usually called procedural justice rather than some presumed restorative justice impact, authors of the bulk of restorative research publications tend to view greater satisfaction as itself a restorative justice benefit. Although early studies show independent positive impact of restorative obligations—for example, restitution, community service—unanswered questions remain about what additional positive impact might be attributed to the purely restorative features of the restorative process. Yet, evaluation studies in recent years have generally also shown significant reduction in recidivism—at least some of which has been linked to unique features of the restorative process and its impact, for example, on offender remorse and empathy.
How and Why Does It Work? Better Theory for Better Practice
Despite this research progress and better outcomes for restorative programs relative to court and similar alternatives, there remains relatively little insight into why these programs appear to produce positive effects. Indeed, it is a legitimate question, whether it is a restorative justice process or some other set of intervention characteristics that accounts for the success of these practices. What is most needed at this time are clear and coherent theories that are consistent with restorative principles and assumptions that can account for why restorative justice works when it does, and how it works. Testing various theories may also reveal what aspects of restorative process and outcomes best explain why these practices reduce recidivism, improve victim outcomes, and seem to strengthen informal social control and social support.
Theories are not just for academics. Indeed, the best policies and practice are often guided by theories of change: in offenders, victims, other stakeholders, and communities. Theories should also guide practice and replication of successful projects by helping practitioners adapt general principles to diverse cultural and structural environments. As a collective encounter, restorative justice practice is naturally linked to a variety of social theories in criminology, sociology, psychology, and other disciplines.
Without a doubt, the most widely recognized theory associated with restorative justice is reintegrative shaming theory (RST). This theory emerged from sociologist John Braithwaite’s (1989) comparative international work contrasting cultures and societies that tended to have low versus high crime rates. While Braithwaite concluded that generally low-crime cultures are those in which community members “do not mind their own business,” he also emphasized the importance of informal sanctioning processes in which community members clearly denounced the crime or harmful act while also generally continuing to support the offender as a community member. This process, which he labeled “reintegrative shaming” (as the opposite of “disintegrative shaming”), has become the theory most associated internationally with the restorative justice process. While a powerful theory, reintegrative shaming practice does not receive absolute support among restorative justice advocates, many of whom prefer the emphasis on empathy and support rather than shame. In any case, even those who do use RST consistently now recognize it as only one of many theories that help to explain the impact of restorative justice.
In addition, a number of other theories appear to align directly with core values and principles of restorative justice, while at the same time providing practitioners with important immediate and intermediate outcomes that link practice with long-term impacts and help to explain the success or failures of restorative interventions. Based on their fieldwork using interviews with staff and participants in restorative conferencing programs in several states and local communities, Bazemore and Schiff (2004) documented “grounded theories” in common use in restorative practice. These researchers also demonstrated how these theories tend to direct practice toward certain process approaches, and toward a focus on initial and intermediate outcomes believed to lead to positive long-term results (e.g., reduced recidivism, long-term victim healing). These theories and associated outcomes are discussed below as they relate to one of the three core principles of restorative justice.
The first core outcome is associated with the overarching goal/principle of repairing harm. In restorative practice, this principle gauges the extent to which the offender acknowledges responsibility for his or her actions, and is then held accountable to victim and community. The offender does this by “making amends” for the harm his or her crime has caused. This outcome dimension is grounded in exchange theories that emphasize the importance of reciprocity in human interaction. A second core outcome associated with the principle of repairing harm is the focus on rebuilding relationships damaged by crime, or helping offenders, victims, and families make new connections with positive individuals and support groups. This practice and outcome is grounded in Cullen’s (1994) social support theory, which suggests that both emotional/affective support (e.g., from family and intimates) and more tangible instrumental assistance from prosocial community members enable offenders to desist from crime, and victims to recover from the trauma of crime.
Theories surrounding the principle of stakeholder involvement emphasize different varieties, or tendencies, in the restorative decision-making or conferencing process. These theories give priority to different intermediate intervention objectives as most important in various theories of restorative decision making. For example, a theory of healing dialogue, which claims that the “victim–offender exchange” in the conference setting (with relevant input from others in the conference) is the most critical dimension (i.e., immediate outcome) of a successful conference, gives primary weight to the power of relatively unrestricted victim–offender discourse. Another perspective related to this principle is a theory of common ground, which suggests the importance of a kind of “mutual transformation” of victim and offender as an outcome central to the ultimate resolution of harm and conflict. This dimension gives priority to the power of conflict resolution processes that build upon what is at times a small overlap in the interests of victim and offender, offender and community, and victim and community. Facilitators in a restorative process often find this overlap by close attention to change in group emotions, by respectful acknowledgement of the “other” (e.g., victim of the offender), and by recognizing and building on transition in subtle phases of the dialogue process. Also aligned with the stakeholder involvement principle is the previously discussed reintegrative shaming theory, which seeks a collective “respectful disapproval” of the offender’s behavior by those who acknowledge the harm caused, while distinguishing the behavior from the offender himself or herself.
Community/Government Role Transformation
The need for transformation of the community/government role and relationship in the response to crime suggested by the third restorative principle is consistent with more macro theories of social capital and informal social control. The theory and principle are best operationalized when participants in a restorative process (and their support groups, neighborhoods, and organizations) engage in “norm affirmation,” or values clarification and, in doing so, strengthen networks of support based on trust and reciprocity. These networks then form the basis for building common skills of informal social control and mutual support, and finally developing the commitment needed to exercise these skills as suggested by the theory of collective efficacy.
Another phase or dimension of community building noted in field observation of restorative processes, referred to as collective ownership, appears to emerge in restorative conferences when participants begin to take responsibility both for the case at hand, and for some of the larger local problems it exemplifies. This collective ownership may then impact willingness to take action in informal control and support based on a theory of civic engagement. The latter theory also suggests that offenders who make such a commitment, and follow through in the process of giving back by visibly making amends to their communities, are thereby able to demonstrate their value as productive citizens with something to offer to the wellbeing of others.
Practical Challenges to Restorative Policy and Practice
While restorative justice has demonstrated great success in some parts of the world, the restorative justice movement, especially in the United States, finds itself in something of a crisis due to a decline in resources to support new programs and initiatives, and continuing policymaker commitment to punitive and less effective alternative programs. Despite positive empirical impact and widespread support for restorative justice values, most problematic has been the lack of broad application of restorative practices and policies beyond responses to low-level crimes. Also apparent is the failure to move beyond mostly small “boutique programs” disconnected from mainstream juvenile and criminal justice and from systemic change. For mainstream criminal and juvenile justice officials, these programs may seem worthy of support as one of many “alternatives” for low-level cases, but they also seem to be isolated from mainstream concerns. Most importantly, restorative justice advocates have often failed to explain to those criminal and juvenile justice professionals and the communities they serve how restorative justice programs help them solve fundamental system and community problems.
A focus on programs cannot provide the basis for a holistic approach to restorative justice in the absence of a systemic commitment to transform the focus and effectiveness of criminal and juvenile justice intervention. Indeed, the most successful case study of a comprehensive implementation of restorative justice began somewhat inadvertently in the late 1980s in New Zealand, as mentioned early in this chapter. This modern beginning of a systemwide restorative effort in juvenile justice produced national legislation mandating use of an ancient, nonadversarial decision-making model employed by Maori aboriginals for hundreds of years (now known widely as family group conferencing) to determine the disposition, or sentence, for all juvenile cases other than murder and rape. Family group conferences, rather than being presented as “alternative” or “add-on” programs, were meant to give parents, as well as extended family (or clan) and community members, primary input into decision making for these cases once guilt/responsibility for the crime was established. In doing so, this practice largely displaced or reduced the dispositional function of the court, while also addressing the solving of chronic system and community problems that were the primary concern of the national legislation: overuse of incarceration for juvenile offenders resulting in severe facility crowding, and the disproportionate confinement (DMC) of minority youth (i.e., Maoris).
While the New Zealand experience is unique as a case study in restorative justice implementation, there are many important lessons in that effort for the United States and other countries. Many countries, for example—including those in the United Kingdom and Europe, as well as Canada and Australian provinces and states—while not mandating use of restorative processes, specify presumptive use of restorative justice for many crimes; that is, use is expected in the absence of justification not to do so. Despite the fact that 25 U.S. states by the late 1990s had changed the purpose clauses of their juvenile codes to include restorative justice, and estimates in early 2000 that more than 700 restorative programs operated nationally, most states support only a handful of programs. Moreover, referral rates are miniscule relative to most programs and mainstream dispositions (e.g., probation), and most importantly, few of these jurisdictions specify or even prioritize use of restorative practices.
Given the relative failure in the United States to make restorative justice part of the mainstream of criminal and juvenile justice, a checklist of do’s and don’ts that should guide a new two-pronged strategy for expanding, sustaining, and maximizing the use and benefits of restorative policy and practice might have several key assumptions. In addition to the general emphasis on engaging system leaders by demonstrating how restorative justice could (as in the New Zealand and other experiences) resolve chronic system and community problems (i.e., by increasing public safety), additional specific recommendations for implementing and expanding use and impact of restorative justice policy and practice include the following: (1) Deemphasize programs and challenge the view that restorative justice is an “alternative” rather than a primary, even essential, feature of both decision making in criminal and juvenile justice and follow-up on meaningful obligations and sanctions assigned to offenders; (2) rather than supplement, or provide an “alternative” to, many mainstream, ineffective practices, restorative justice should be designated in statute or policy as the primary response to large groups of offenses; (3) because restorative justice is compatible with core justice functions in multiple settings, advocates should seek to develop a restorative “way” or approach to enhance and refocus core criminal justice functions—e.g., consider a restorative model of discipline and conflict resolution in correction facilities and in schools, and develop restorative models of diversion, probation, and reentry. In addition, restorative values and principles have been discussed and initially applied to staff discipline, court management, community policing, and other core criminal justice functions and could be further expanded as movement toward a systemic approach.
Restorative justice is a “new” approach based on ancient practices, unique justice values, and core principles. These justice principles guide a new justice process based on maximizing participation of core stakeholders—victim, offender, and community—and repairing the harm caused by crime. New outcomes emphasize accountability for the offender based on taking responsibility to make amends to victim and community and rebuilding or strengthening relationships of both offender and victim to their communities and supporters.
Challenges include moving beyond a programmatic approach to a holistic focus that seeks a restorative outcome in every case and uses restorative justice principles to solve major systemic problems in criminal justice and communities. Public opinion generally favors restorative justice practices, and prefers alternatives forms of accountability for most crimes. Yet, the continued commitment of U.S. policymakers to retributive punishment and to an emerging prison industrial complex that appears to be creating the societal condition sociologist Bruce Western (2007) now calls “mass imprisonment” presents formidable challenges to any progressive reform. Optimism for greater use of restorative justice is based on strong research findings indicating its effectiveness in achieving multiple outcomes for multiple stakeholders, including reduced recidivism, and victim satisfaction and healing. Moreover, the connection between restorative justice principles and evidence-based theories of change at the social-psychological, peer support, and community-building levels of intervention provides further rationales for expanding these approaches. Finally, increasing recognition of a decline in and a need for revitalization of community skills in informal crime control and positive support for prosocial behavior also set the context for greater application of restorative justice solutions.