As the American criminal justice system enters the twenty-first century it continues to be faced with numerous unresolved problems. While some advocate greater retribution and harsher penalties, others continue to believe in the importance of rehabilitating criminals and preventing further crime. These conflicting views have led to an increasing lack of clarity about the basic purpose of sentencing. Is it meant to rehabilitate and change offender behavior? Are criminal sentences meant to deter others from committing crimes? Or should the purpose of sentencing be simply to incapacitate, by removing, the criminal from circulation in society for a set period of time?
Crime victims have traditionally been given virtually no legal standing in the process of doing justice in American courts, even though the justice system exists because individual citizens have been hurt by criminal behavior. Victims of crime feel increasingly frustrated and alienated by the current system of justice. The crime is against "the state" and state interests drive the process of doing justice. Individual crime victims are left on the sidelines with little, if any, input. Crime victims frequently feel twice victimized. First, by the offenders. Second, by the criminal justice system that their tax dollars are paying for. For many crime victims their encounter with the justice system leads to increasing frustration and anger as they are largely ignored, often not even provided with information about the process, court date changes, and the final disposition of the case. Rarely do criminal justice professionals take the time to listen to the fears and concerns of crime victims, seek their input, or invite their participation in holding an offender accountable.
Another problem facing the U.S. criminal justice system is that increasingly harsh punishments have failed to change criminal behavior. If severe punishment and incarceration were effective, America would be one of the safest societies in the world. Many citizens and politicians believe the United States is too lenient with criminals. The fact is, however, that more citizens are locked up in prisons in America, per capita, than in any developed nation in the world other than Russia. In a similar vein, sentences in the United States are far in excess of other democratic Western nations. The United States is the only developed nation to routinely advocate and carry out capital punishment.
Finally, the skyrocketing cost of corrections, and incarceration specifically, is driving a growing number of legislatures and policymakers to reconsider the wisdom of the current retributive system of justice, which relies so heavily upon incarceration, while largely ignoring the needs of crime victims.
The public debate around issues of crime and punishment is often driven by political leadership embracing the conservative or liberal solutions of the past. A significant new development in our thinking about crime and justice is the growing international interest in restorative justice theory (Bazemore and Umbreit; Galaway and Hudson; Van Ness and Strong; Zehr). Restorative justice offers a fundamentally different framework for understanding and responding to crime and victimization. Restorative justice emphasizes the importance of elevating the role of crime victims and community members, holding offenders directly accountable to the people they have violated, restoring the emotional and material losses of victims, and providing a range of opportunities for dialogue, negotiation, and problem solving, which can lead to a greater sense of community safety, conflict resolution, and closure for all involved.
In contrast to the offender-driven nature of our current systems of justice, restorative justice focuses upon three client groups: crime victims, offenders, and community members. It represents a growing international movement with a relatively clear set of values, principles, and guidelines for practice, although still lacking a comprehensive plan to fully replace our current systems of juvenile and criminal justice. This new theory is based upon many old-fashioned principles and it is gaining support among a growing number of correctional policymakers and practitioners, victim advocates, court officials, and law enforcement officials. At its best, restorative justice truly represents a unique way of responding to crime through more active involvement of crime victims and the community. It goes far beyond the traditional liberal and conservative positions of the past by identifying underlying truths and joint interests of all of those concerned about crime policy in a democratic society.
What is restorative justice?
Restorative justice provides an entirely different way of thinking about crime and victimization. Under previous criminal justice paradigms the state was viewed as the primary victim of criminal acts, and victims and offenders played passive roles. Restorative justice recognizes crime as first and foremost being directed against individual people. It assumes that those most affected by crime should have the opportunity to become actively involved in resolving the conflict. The emphasis is on restoration of losses, allowing offenders to take direct responsibility for their actions, and assisting victims in moving beyond their sense of vulnerability and achieving some closure. These goals stand in sharp contrast to those of traditional paradigms, which focused on past criminal behavior through everincreasing levels of punishment (Bazemore and Walgrave; Umbreit, 1994; Wright). Restorative justice attempts to draw upon the strengths of both offenders and victims, rather than focusing upon their deficits. While denouncing criminal behavior, restorative justice emphasizes the need to treat offenders with respect and to reintegrate them into the larger community in ways that can lead to lawful behavior. It represents a truly different paradigm based upon the following values.
- Restorative justice is far more concerned about restoration of the victim and victimized community than with ever more costly punishment of the offender.
- Restorative justice elevates the importance of the victim in the criminal justice process, through increased involvement, input, and services.
- Restorative justice requires that offenders be held directly accountable to the person and/or community that they victimized.
- Restorative justice encourages the entire community to be involved in holding the offender accountable and promoting a healing response to the needs of victims and offenders.
- Restorative justice places greater emphasis on the offender accepting responsibility for his or her behavior, and making amends whenever possible, than on the severity of punishment.
- Restorative justice recognizes a community responsibility for social conditions that contribute to offender behavior.
The theory of restorative justice provides a blueprint for moving into the twenty-first century by drawing upon much of the wisdom of the past. In eleventh-century England, following the Norman invasion of Britain, a major paradigm shift occurred in which there was a turning away from the well-established understanding of crime as a victim-offender conflict within the context of community. William the Conqueror's son, Henry I, issued a decree securing royal jurisdiction over certain offenses against the king's peace (robbery, arson, murder, theft, and other violent crimes). Prior to this decree crime had always been viewed as conflict between individuals, and the emphasis was on repairing the damage by making amends to the victim.
Restorative justice also draws upon the rich heritage of many recent justice reform movements, including community corrections, victim advocacy, and community policing. The principles of restorative justice are particularly congruent with those of many indigenous traditions, including Native American, Hawaiian, Canadian First Nation people, and the Maori of New Zealand. These principles are also consistent with values emphasized by nearly all of the world religions.
Restorative justice can be expressed through a wide range of policies and practices directed toward offenders and crime victims, including: victim support and advocacy, restitution, community service, victim impact panels, victim-offender mediation, circle sentencing, family group conferencing, community boards that meet with offenders to determine appropriate sanctions, victim empathy classes for offenders, and community policing.
What does restorative justice look like in practice?
As communities move toward a more fully developed restorative justice system, juvenile and criminal justice practice would include the following characteristics, some of which are already in place.
- Victims and families of victims receive support and assistance.
- If they wish, victims have the chance to help determine how the offender will repair the harm done.
- Restitution is more important than other financial obligations of the offender.
- Victim-offender mediation and dialogue is available for victims who want to have a mediation meeting with the offender to discuss how the crime affected them and how the offender can repair the harm. Victim-offender mediations are conducted by trained mediators who are sensitive to the needs of victims and their families.
- Community volunteers work with offenders.
- The community provides work for offenders so they will be able to pay restitution to victims.
- Offenders participate in community service projects that are valued by the community.
- Educational programs for offenders include becoming aware of how victims feel and learning to empathize with victims. Education also helps offenders see their responsibilities as members of a community.
- Offenders face the personal harm caused by their crime through victim-offender mediation, hearing panels or groups of victims or community members talk about their experiences with crime and how crime has affected their lives.
- Orders to repair the harm caused by crime are more important than orders imposed just for punishment.
- The courts and corrections provide annual reports on how reparation is made.
- Community members advise the courts and corrections by being on advisory boards.
- Business and community groups work with offenders to bring them back into the community as the offenders make good on their obligations.
- Faith communities sponsor support groups for offenders trying to change their lives, or for crime victims during the initial crisis stage.
- Offenders end up with greater skills than when they entered the corrections system.
- Community members become involved in reparative probation boards, panels, or peacemaking circles, in which they become directly involved in holding the offender accountable for the harm caused, serving the needs of victims, and strengthening bonds within the community.
How widespread is interest in restorative justice?
The initial conceptualization of restorative justice began in the late 1970s and was first clearly articulated by Howard Zehr. At that time, the discussion of this new paradigm was based largely in North America, with a small network of academicians and practitioners in Europe. Restorative justice was not being considered seriously by mainstream criminal and juvenile justice policymakers and practitioners.
By 1990, an international conference supported by NATO funds was convened in Italy to examine the growing interest in restorative justice throughout the world. Academicians and practitioners from a wide range of countries (Austria, Belgium, Canada, England, Finland, France, Germany, Greece, Italy, Netherlands, Norway, Scotland, Turkey) presented papers related to the development and impact of restorative justice policies and practice. International interest in restorative justice has continued to grow. In 1995, the New Zealand Ministry of Justice issued a working paper on restorative justice for serious consideration as a federal policy. During 1996 and 1997, a group of scholars in North America and Europe interested in restorative justice met in the United States and Belgium to further examine this emerging practice theory. Additional and much larger international conferences have been held in the United States and in Germany. The Council of Europe endorsed the concept of restorative justice through victim-offender mediation in 1999, and a subcommittee of the United Nations has also been examining the concept.
Interest in the United States grew extensively during the mid-to late 1990s. Representing one of the oldest and most visible expressions of restorative justice, the practice of victim-offender mediation (Umbreit, 1995c; Zehr) in which the actual victim and offender meet each other, talk about the impact of the crime, and develop a plan for repairing the harm, is now occurring in more than three hundred communities throughout the United States and at more than one thousand locations in Europe (Umbreit and Greenwood).
Perhaps the strongest indication of how the restorative justice practice of victim-offender mediation is entering the mainstream is seen in the actions of one of its most powerful former skeptics. The American Bar Association has played a major leadership role in the area of civil court mediation for over two decades. After many years of little interest, if not skepticism, the A.B.A. in the summer of 1994 fully endorsed the practice of victim-offender mediation and recommended its development in courts throughout the country.
Another clear expression of the growing support for restorative justice is seen in the National Organization for Victim Assistance's endorsement of "restorative community justice." During the early years of this movement, most victim advocacy groups were quite skeptical. While some still are, however, there is a growing number of victim support organizations actively participating in the restorative justice movement.
Where have restorative justice practices been implemented?
In contrast to many previous reform movements, the restorative justice movement has major, system-wide implications for how justice is done in American society. While initiating restorative justice interventions such as victim-offender mediation, family group conferencing, restorative community service, victim panels, and other forms of victim-offender dialogue or neighborhood dispute resolution is important, restorative justice places a heavy emphasis upon systemic change. Already there are twenty states that have introduced and/or passed legislation promoting a more balanced and restorative juvenile justice system. Thirty other states have restorative justice principles in their mission statements or policy plans. There are individual restorative justice programs in virtually every state, and a growing number of states and local jurisdictions are dramatically changing their criminal and juvenile justice systems to adopt the principles and practices of restorative justice.
An example of systemic change
In 1994, the Vermont Department of Corrections embarked on one of the most ambitious system-wide restorative justice initiatives. Following a public opinion poll that indicated broad dissatisfaction with the criminal justice system and openness to more restorative and community-based responses to nonviolent crime, the department "took a wrecking ball" and demolished a one-hundred-year-old correctional system built upon the options of either prison or probation. They were able to identify up to 50 percent of the current probation caseload that they believed could be held accountable by Reparative Probation Community Boards made up of citizen volunteers. Instead of traditional probation supervision, a wide range of property offenders would be referred directly to a Reparative Community Board. In dialogue with the offender, the board determines a community-based restorative sanction, oftentimes including victim offender mediation, community service, or meeting with a victim panel. The Department is now encouraging crime victims to be represented on each Reparative Probation Community Board. Few other restorative justice initiatives in the United States represent such a major structural change that clearly elevates the role of community volunteers and crime victims in the process of holding offenders accountable to the community they violated.
An example of a widespread restorative justice program
Victim-offender mediation is a process that provides interested victims of (primarily) property crimes the opportunity to meet the offender, in a safe and structured setting, with the goal of holding the offender directly accountable for their behavior while providing importance assistance and compensation to the victim (Umbreit, 1995b). With the assistance of a trained mediator, the victim can tell the offender how the crime affected them, receive answers to questions they may have, and be directly involved in developing a restitution plan holding the offender accountable for the losses incurred. The offender is able to take direct responsibility for his or her behavior, learn the full impact of what they did, and develop a plan for making amends to the person(s) they violated. Some victim-offender mediation programs are called "victim-offender meetings" or "victim-offender conferences."
While many other types of mediation are largely "settlement driven," victim-offender mediation is primarily "dialogue driven," with the emphasis upon victim healing, offender accountability, and restoration of losses. Contrary to other applications of mediation in which the mediator would first meet the parties during the joint mediation session, in victim-offender mediation a very different process is used based upon a humanistic model of mediation (Umbreit, 1997). This model involves reframing the goal of mediation from settlement to facilitating dialogue and mutual aid; scheduling separate premediation sessions with each party; connecting with the parties but building rapport and trust, while not taking sides; identifying the strengths of each party; using a nondirective style of mediation that creates a safe space for dialogue and accessing the strengths of participants; and recognizing and using the power of silence.
Most victim-offender mediation sessions do in fact result in a signed restitution agreement. This agreement, however, is secondary to the importance of the initial dialogue between the parties; such a dialogue addresses the emotional and informational needs of victims that are central to their healing and to development of victim empathy in the offender, which can reduce future criminal behavior.
Since 1975 when the first victim-offender mediation program was established in Kitchener, Ontario, many criminal justice officials have been quite skeptical about victim interest in meeting the offender. Victim-offender mediation is clearly not appropriate for all crime victims or offenders; practitioners are trained to present it as a voluntary choice for the victim and the offender. With more than twenty years of mediating many thousands of cases throughout North America and Europe, experience has shown that the majority of victims presented with the option of mediation choose to enter the process.
What have we learned from research?
Little empirical data is available on most restorative justice policies and practices, although a growing number of studies are being initiated. For present purposes, findings that have emerged from the study of the oldest and most well-developed restorative justice intervention throughout North America and Europe will be highlighted. The practice of victim-offender mediation with juvenile and adult offenders has been the subject of forty studies in the United States and Europe (Umbreit, 2000). A cross-national study of victim-offender mediation in four states (Umbreit and Coates), four provinces of Canada, and two cities of England (Umbreit, Coates, and Roberts) found high levels of victim and offender satisfaction with the mediation process and outcome. Victims who met the juvenile offender were significantly more likely to have been satisfied with how the justice system handled their case than similar victims who did not participate in mediation, and they also were significantly less fearful of being revictimized, after the mediation session. Offenders in mediation were significantly more likely to successfully complete restitution than were similar offenders who did not meet their victim. A large study of nearly thirteen hundred juvenile offenders (Nugent, Umbreit, Wiinamaki, and Paddock, 2000) found a 32 percent reduction in recidivism among those juvenile offenders who participated in a mediation session with their victim.
The restorative justice movement is having an increasing impact upon criminal justice system policymakers and practitioners throughout the world. As a relatively young reform effort, the restorative justice movement and the practice of victim-offender mediation, as its oldest empirically grounded intervention, hold great promise as we enter the twenty-first century. By drawing upon many traditional values of the past, and from many different cultures, we have the opportunity to build a far more accountable, understandable, and healing system of justice that can lead to a greater sense of community through active victim and citizen involvement in restorative initiatives.
See also Amnesty and Pardon; Comparative Criminal Law and Enforcement: Preliterate Societies; Informal Dispositions; Punishment; Rehabilitation; Retributivism; Sentencing: Alternatives; Victims' Rights.
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Bazemore, G., and Walgrave, L. Restorative Juvenile Justice: Repairing the Harm of Youth Crime. Monsey, N.Y.: Criminal Justice Press, 1999.
Braithwaite, John. "Restorative Justice." Crime & Justice: A Review of Research 25 (1999): 1–127.
Galaway, B., and Hudson, J. Restorative Justice: An International Perspective. Monsey, N.Y.: Criminal Justice Press, 1996.
Nugent, W. R.; Umbreit, M. S.; Wiinamaki, L.; and Paddock, J. B. "Participation in Victim-Offender Mediation and Re-Offense: Successful Replications?" Journal of Research on Social Work Practice 11, no. 1 (2000): 5–23.
Umbreit, M. S. The Handbook on Victim Offender Mediation: An Essential Guide for Practice and Research. San Francisco, Calif.: Jossey-Bass Publishers, 2001.
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Umbreit, M. S., and Coates, R. B. "Cross-Site Analysis of Victim Offender Mediation in Four States." Crime & Delinquency 39, no. 4 (1993): 565–585.
Umbreit, M. S.; Coates, R. B.; and Roberts, A. W. "The Impact of Victim-Offender Mediation: A Cross-National Perspective." Mediation Quarterly 17, no. 3 (2000): 215–229.
Umbreit, M. S., and Greenwood, J. "National Survey of Victim Offender Mediation Programs in the United States." Mediation Quarterly 16, no. 3 (1999): 235–251.
Wright, M. Justice for Victims and Offenders. Philadelphia, Pa.: Open University Press, 1991.
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"Restorative Justice." Encyclopedia of Crime and Justice. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/law/legal-and-political-magazines/restorative-justice
"Restorative Justice." Encyclopedia of Crime and Justice. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/law/legal-and-political-magazines/restorative-justice
A philosophical framework and a series of programs for the criminal justice system that emphasize the need to repair the harm done to crime victims through a process of negotiation, mediation, victim empowerment, andreparation.
The U.S. criminal justice system historically has employed two models for dealing with crime and criminals. The retribution model emphasizes deterrence and punishment through the adversarial criminal justice process, and the rehabilitation model emphasizes the need for society to assist criminals in changing their attitudes and behavior. Since the 1970s, however, a third model, called restorative justice, has begun to find acceptance in many U.S. communities. Restorative justice emphasizes an equal concern for crime victims and offenders, while deemphasizing the importance of coercion. It also seeks to focus on the harm done to persons and relationships rather than on the violation of a law. Beyond its philosophical framework, the restorative justice model includes a number of programs for addressing the needs of crime victims, the community, and offenders.
Restorative justice began in Canada in the mid-1970s as an idea for victim-offender reconciliation. Offenders were brought to their victims' homes to see and hear how their crimes had affected the victims and the victims' families and communities. The Mennonite Church was at the forefront of the restorative justice movement, emphasizing Christian principles of personal salvation and peacemaking. Though restorative justice became more secularized in the 1980s and 1990s, many of its core principles are based on Christian beliefs about forgiveness and healing.
Originally viewed as a fringe idea, restorative justice developed respectability in the 1990s, in part because the retribution model had proved to be an expensive and seemingly ineffective way of dealing with crime in the United States. Proponents of restorative justice argue that it is a clear alternative to retribution, emphasizing the need for community involvement in addressing criminal behavior. Today restorative justice programs can be found around the world.
There are many programs and ideas associated with restorative justice. Several hundred communities have adopted the Victim Offender Reconciliation Program (VORP), which brings the victim and the offender together to talk about the crime and its impact on the victim and to mediate a solution acceptable to both parties. In a VORP mediation, the offender recognizes the injustice he has committed and negotiates a plan to restore the victim and repair the damage. In addition to seeking financial restitution for the victim, VORP attempts to heal the victim's emotional wounds and to impress upon the offender the consequences of the crime and the need for changing behavior.
Ideally, restorative justice programs such as VORP rely on cooperation rather than coercion to make the offender feel accountable for his actions. However, coercion may be used if the goal is to encourage the offender to cooperate.
Other restorative justice programs include community service options for offenders, often with the input of crime victims; comprehensive victim services; and community advisory boards on crimes that address situations that promote crime. The concept of circles, which have long existed among Native Americans in the United States and Canada, has gained appeal. The victim and the offender agree to participate in a group meeting in which members of the community provide their guidance and perspectives. "Healing circles" allow the offender to express remorse while giving the victim and the community an opportunity to accept that remorse. In "sentencing circles," the community helps decide the proper response to the crime. The circle concept has worked within Native American cultures in part because they tend to be close-knit and circles require the participation of community members. Conferencing, which originated among the Maori of New Zealand, is used with juvenile offenders. Conferencing involves discussion and mediation, but it includes members of the community (families, community support groups, police, attorneys) along with the victim and the offender.
A prime component of restorative justice is restitution to crime victims. For example, if an offender vandalizes a car, that person must pay for the repairs. Restitution has also become part of the retribution model of justice as well, with courts making restitution to the victim along with sentencing the offender to jail or imposing a fine. In restorative justice, restitution is part of a larger goal to restore the crime victim's loss and to impress upon the offender the destructive aspects of crime.
Braithwaite, John. 2002. Restorative Justice & Responsive Regulation. New York: Oxford Univ. Press.
Walgrave, Lode, ed. 2002. Restorative Justice and the Law. Uffculme, Cullompton, Devon, U.K.: Willan Publishing.
Weitekamp, Elmar, and Hans-Jurgen Kerner, eds. 2003. Restorative Justice: Theoretical Foundations. Uffculme, Cullompton, Devon, U.K.: Willan Publishing.
"Restorative Justice." West's Encyclopedia of American Law. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/restorative-justice
"Restorative Justice." West's Encyclopedia of American Law. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/restorative-justice