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Restorative justice

Restorative Justice is commonly known as a theory of criminal justice that focuses on crime as an act against another individual or community rather than the state. People harmed by wrongdoing may play a major role in the process and may receive some type of restitution from the person who caused the harm.

Definition of Restorative Justice:

"Restorative justice is a broad term which encompasses a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. These range from international peacemaking tribunals such as the South Africa Truth and Reconciliation Commission to innovations within the criminal justice system, schools, social services and communities. Rather than privileging the law, professionals and the state, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative justice seeks to build partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within our communities. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through processes that preserve the safety and dignity of all.

Citing Greif, Liebmann has written that

a way of looking at restorative justice is to think of it as a balance between a number of different tensions:
- a balance between the therapeutic and the retributive models of justice
- a balance between the rights of offenders and the needs of victims
- a balance between the need to rehabilitate offenders and the duty to protect the public.

History

Restorative approaches to crime date back thousands of years:

In North America, the first traces of restorative justice have been attributed to the First Nations communities.
In Israel, the Pentateuch specified restitution for property crimes.
In Sumer, the Code of Ur-Nammu (c. 2060 BC) required restitution for offenses of violence.
In Babylon, the Code of Hammurabi (c. 1700 BC) prescribed restitution as a sanction for property offenses.
In Rome, the Twelve Tables (449 BC) ordered convicted thieves to pay double the value of stolen goods.
In Ireland, under the Brehon Laws (first recorded in the Old Irish period) compensation was the means of restitution for most crimes.
In Germany, tribal laws promulgated by King Clovis I (496 AD) called for restitutional sanctions for both violent and nonviolent offenses.
In England, the Laws of Ethelbert of Kent (c. 600 AD) included detailed restitution schedules.

Retributive justice began to replace this system following the Norman invasion of Britain in 1066 A.D. William the Conqueror's son, Henry I, issued laws detailing offenses against the “king’s peace.” By the end of the 11th century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state.

Applications of Restorative Justice:

Restorative justice takes many different forms, but all systems have some aspects in common. In criminal cases, victims have an opportunity to express the full impact of the crime upon their lives, to receive answers to any lingering questions about the incident, and to participate in holding the offender accountable for his or her actions. Offenders can tell their story of why the crime occurred and how it has affected their lives. They are given an opportunity to make things right with the victim—to the degree possible—through some form of compensation.

In social justice cases, impoverished people such as foster children are given the opportunity to describe what they hope for their futures and make concrete plans for transitioning out of state custody in a group process with their supporters

In criminal cases, types of compensation include, but are not limited to: money, community service in general, community service specific to the deed, self-education to prevent recidivism, and/or expression of remorse.

In social justice cases, restorative justice is used for problem solving.

Restorative justice sometimes happens in the context of a courtroom, and sometimes within a community or nonprofit organization.

In the courtroom, the process might look like this: For petty or first-time offenses, a case may be referred to restorative justice as a pretrial diversion, with charges being dismissed after fulfillment of the restitution agreement. In more serious cases, restorative justice may be part of a sentence that includes prison time or other punishments.

In the community, concerned individuals meet with all affected parties to determine what the experience and impact of the crime were for all. Those called out for offenses listen to others' experiences first, preferably until they are able to reflect and feel what those experiences were for the others. Then they speak to their experience: how it was for them to do what they did. A plan is made for prevention of future occurrences, and for the offender to heal the damage to the injured parties. All agree. Community members hold offender accountable for adherence to the plan.

Most academics and government definitions of restorative justice restrict that definition to those programs that involve an encounter between the offender and the victim. Some grassroots organizations, like the Mennonite Central Committee Canada, define restorative justice programs less on who the clientele of the program is, and more on the programs values. This means that programs that only serve victims (or offenders for that matter), but have a restorative framework, are considered a restorative justice program. Restorative justice pioneer Howard Zehr was honored as the recipient of the 2006 Community of Christ International Peace Award.

Many Libertarians support restorative justice because it is a victim-centric rather than state-centric approach to law enforcement.

Restorative Justice Processes

Victim-Offender Mediation

Victim-offender mediation, or VOM (also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue), is usually a face-to-face meeting, in the presence of a trained mediator, between the victim of a crime and the person who committed that crime. This system generally involves a small number of participants, and often is the only option available to incarcerated offenders, due to limits on visitors. VOM originated in Canada where it formed part of an alternative court sanction in a 1974 Kitchener, Ontario case involving two accused vandals who met face-to-face with their many victims.

Family Group Conferencing

Family group conferencing (FGC) has a much wider circle of participants than VOM. In addition to the primary victim and offender, participants may include people connected to the victim, the offender’s family members, and others connected to the offender (for example, friends, and professionals). FGC is often the most appropriate system for juvenile cases, due to the important role of the family in a juvenile offender’s life. Examples of the use of FGC in a juvenile justice setting can be found in the statutory scheme operating in New South Wales (Australia) under the Young Offenders Act 1997, and in New Zealand under the Children, Young Persons, and their Families Act, 1989. The New South Wales scheme has been favourably evaluated by the New South Wales Bureau of Crime Statistics and Research.

Restorative or Community Conferencing

Restorative Conferencing has a much wider circle of participants than VOM. Restorative conferences, which have also been called restorative justice conferences, family group conferences and community accountability conferences, originated as a response to juvenile crime (Doolan, 1999; O'Connell, 1998).

A conference is a structured meeting between offenders, victims and both parties' family and friends, in which they deal with the consequences of the crime and decide how best to repair the harm. Neither a counseling nor a mediation process, conferencing is a victim-sensitive, straightforward problem-solving method that demonstrates how citizens can resolve their own problems when provided with a constructive forum to do so (O’Connell, Wachtel, & Wachtel, 1999).

Conferences provide victims and others with an opportunity to confront the offender, express their feelings, ask questions and have a say in the outcome. Offenders hear firsthand how their behavior has affected people. They may begin to repair the harm by apologizing, making amends and agreeing to financial restitution or personal or community service work. Conferences hold offenders accountable while providing them with an opportunity to discard the "offender" label and be reintegrated into their community, school or workplace (Morris and Maxwell, 2001).

Participation in conferences is voluntary. After it is determined that a conference is appropriate and offenders and victims have agreed to attend, the conference facilitator invites others affected by the incident–the family and friends of victims and offenders (O’Connell, Wachtel, & Wachtel, 1999). In some cases, if a victim is unwilling to participate in a face-to-face meeting, he may make a written statement to be used in the conference, or a surrogate victim may take his place.

The conference facilitator sticks to a simple script and keeps the conference on focus, but is not an active participant. In the conference the facilitator asks the offenders to tell what they did and what they were thinking about when they did it. The facilitator then asks victims and their family members and friends to tell about the incident from their perspective and how it affected them. The offenders' family and friends are asked to do the same (O’Connell, Wachtel, & Wachtel, 1999).

In Brazil, a style of restorative conferencing inspired by Nonviolent Communication has begun to be used in the youth criminal justice system and in the schools.. Like other restorative conferencing practices, the Brazilian "restorative circles" minimize the role of the facilitator, in the interest of empowering circle participants to own the process and feel that in the future they can use the process without an outside facilitator. The approach strives to break free from the retributive model more fully than is in the case in some other restorative practices by emphasizing thinking of participants as human beings, rather than being an "offender," "victim," or other label, and by focusing on each person's choices and the human needs that motivated them. Each person is encouraged to take responsibility for their part in what happened and co-create what will happen next.

The International Institute for Restorative Practices provides training in restorative conferencing and other restorative practices throughout the world.

Community Restorative Boards

A community restorative board, also referred to by other names internationally such as community justice committees in Canada and referral order panels in England & Wales, is typically composed of a small group of citizens, prepared for this function by intensive training, who conduct public, face-to-face meetings with offenders who have been sentenced by the court to participate in the process or who have been referred by police officers on a pre-charge basis or as part of a peripheral, extra-judicial process. Victims of the offender are invited to participate in the process by meeting with the board and offender, or by submitting a written statement which is shared with the offender and the board. During a meeting, board members discuss with the offender the nature of the offense, impact of the behavior, and negative consequences. Then board members discuss a set of actions with the offender, until they reach agreement on the specific actions the offender will take within a given time period to make reparation for the crime. Subsequently, the offender must document his or her progress in fulfilling the terms of the agreement. After the stipulated period of time has passed, the board submits a report to the court on the offender’s compliance or a written documentation to the referring police officer, with the agreed upon sanctions. At this point, the board’s involvement with the offender is ended.

Restorative Circles

In Hawaii, Restorative Circles are provided for individual imprisoned people who meet with their families and friends in a group process to address their needs for a successful transition back into the community. One of the needs addressed is the need for reconciliation A Modified Restorative Circlehas also been developed and used in Hawaii for individual incarcerated people whose loved ones are unable or unwilling to attend full Restorative Circles. Instead other imprisoned friends sit in the Circle and are supporters in developing a transition plan that includes how the incarcerated individual having the Circle may reconcile with those harmed by the crime and/or imprisonment.

Circles of Support and Accountability

Circles of Support and Accountability (CoSA) originated as a project of the "Welcome In," a Mennonite church in Hamilton, Ontario. This thoroughly Canadian innovation is now an internationally regarded, evidence-based practice with a demonstrable capacity to enhance the safe integration of otherwise high-risk sex offenders with their community. In Canada, some sex offenders are released to the community after serving all of their sentence. They have been judged too dangerous to be released on any form of conditional release (e.g. a parole certificate), and have therefore been "detained." Upon further reconviction (and therefore, further victimization), many of these offenders would likely be designated as a "Dangerous Offender," under current Canadian law. Prior to 1994 many of these offenders were released without any form of meaningful community-based support or accountability network apart from police surveillance. Since 1994, CoSA has assisted with the integration of well over 120 such offenders by offering them support while holding them accountable. Research now indicates that surrounding a 'core member' with between 5 and 7 carefully selected and trained volunteer circle members significantly reduces sexual re-offence by upwards of 50%. Further, a significant "harm reduction" effect has also been noted in those cases where sexual re-offence has occurred. Offences were less invasive and less brutal in nature than previous offences. CoSA projects now exist in every Canadian province and every major urban centre. CoSA projects are also operational in several U.S. states (California, Oregon, Ohio, Colorado, Vermont) as well as in the Thames Valley region of the United Kingdom.

Sentencing Circles

Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve the victim, victim supporters, the offender, offender supporters, judge and court personnel, prosecutor, defense counsel, police, and all interested community members. Within the circle, people can speak from the heart in a shared search for understanding of the event, and together identify the steps necessary to assist in healing all affected parties and prevent future crimes.

Sentencing circles typically involve a multi-step procedure that includes: (1) application by the offender to participate in the circle process; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle to develop consensus on the elements of a sentencing plan; and (5) follow-up circles to monitor the progress of the offender.

Limitations on Restitution

Some judicial systems only support monetary restitution agreements. For instance, if the victim and offender agreed that the offender would pay $100.00 and mow the victim's lawn 5 times during the months of June and July, the court would only note the $100.00 as restitution. To avoid difficulty in collecting the full restitution, some agreements specify a larger monetary amount (e.g. $200.00) to be paid if the nonmonetary restitution is not provided.

Many jurisdictions place a cap on the restitution a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors. In addition, personal work service usually must be supported by the juvenile's parents.

According to the Victim Offender Mediation Association, victims are not allowed to make a profit from restitution; only their actual out-of-pocket losses can be recovered. Young offenders are often willing to agree to anything to have the session end. If the restitution is unreasonable, however, the court may throw the agreement out.

If the facilitator is not adequately trained in avoiding these pitfalls, a failed restitution agreement may result.

Confidentiality

Some restorative justice systems, especially victim-offender mediation and family group conferencing, require participants to sign a confidentiality agreement. These agreements usually state that anything discussed in the conference will not be disclosed to non-participants. The rationale for confidentiality is that it promotes open and honest communication during the process.

Offenses without a readily identifiable victim, such as truancy or marijuana possession, are less suitable for restorative justice than other crimes, according to Prince William County, Virginia juvenile probation officer Danielle McCauley.

Recidivism

In a criminal context, reduction of recidivism is a secondary goal of restorative justice, achieved incidentally through the primary goal of restoration of offenders. Proponents of restorative justice argue that it can prevent reoffending and deter other potential criminals. Critics have argued, on the other hand, that these practices have no significant influence in lowering crime rates. The response to such arguments tends to focus on whether restorative justice is superior to traditional methods in this regard, rather than on whether it leads to an absolute decrease in crime rates. The majority of the arguments on both sides, however, appear to be predominantly theoretical, as the use of restorative practices in their current form is relatively recent and has not yet become widespread.

The results of those studies which have compared recidivism rates to those achieved by traditional court procedures have been varied. Some studies have demonstrated a relative reduction in recidivism subsequent to restorative procedures, but the decrease has not always been dramatic. An examples of such research is a study of 1,298 juveniles conducted throughout the late 1980s and 1990s, which found a 32% reduction in recidivism relative to a comparison group. A 2001 report by Department of Justice Canada found that "restorative justice programs, on average, yielded reductions in recidivism compared to non-restorative approaches to criminal behavior". These findings were supported by a 2007 Cambridge University report On the other hand, some studies have indicated a relative increase in reoffending after restorative procedures, while still others have found no significant difference between the results of either retributive or restorative justice processes. These results appear insufficient to draw any universal conclusions.

Restorative Practices

The restorative practices concept has its roots in restorative justice. The International Institute for Restorative Practices (IIRP) has been developing a comprehensive framework for practice and theory that expands the restorative paradigm beyond its origins in criminal justice (McCold and Wachtel, 2003). Restorative practices is an emerging field of practice and study devoted to building social capital and achieving social discipline through participatory learning and decision-making.

The field of restorative practices offers a common thread to tie together theory, research and practice in fields such as education, counseling, criminal justice, social work and organizational management. Individuals and organizations in many fields are developing models and methodology and performing empirical research that shares the same fundamental hypothesis.

The fundamental unifying hypothesis of restorative practices is that human beings are happier, more cooperative and productive, and more likely to make positive changes in their behavior when people do things with them, rather than to them or for them. This hypothesis maintains that the punitive and authoritarian to mode and the permissive and paternalistic for mode are not as effective as the restorative, participatory, engaging with mode.

In criminal justice, restorative circles and conferences allow victims, offenders and their respective family members and friends to come together to explore how everyone has been affected by an offense and, when possible, to decide how to repair the harm and meet their own needs (McCold, 2003). In social work, family group decision-making (FGDM) or family group conferencing (FGC) processes empower extended families to meet privately, without professionals in the room, to make a plan to protect children in their own families from further violence and neglect (American Humane Association, 2003). In education, circles and groups provide opportunities for students to share their feelings, build relationships and problem-solve, and when there is wrongdoing, to play an active role in addressing the wrong and making things right .

These various fields employ different terms, all of which fall under the rubric of restorative practices: In the criminal justice field the phrase used is "restorative justice; in social work the term employed is "empowerment" (Simon, 1994); in education, talk is of "positive discipline" (Nelsen, 1996) or "the responsive classroom" ; and in organizational leadership "horizontal management" (Denton, 1998) is referenced.

Use of restorative practices is spreading worldwide, in education, criminal justice, family and youth and-serving and workplace applications (McCold, 1999; O'Connell, 1998).

Restorative justice has been applied to property offences, as well as civil and criminal offences. However, it has been deemed as unsuitable for drug offences, sexual assault and domestic violence. South Australia and New Zealand are among two of the areas which have dealt with juvenile sexual offences (McCold, 1999; O'Connell, 1998). Indigenous regions of Canada have implemented different approaches, such as circle sentencing, to tentatively deal with domestic violence. Advocates believe that it may be applicable to these indigenous communities because of the different level of regard and effectiveness they have for a punitive court system compared to non-indigenous persons. However, it is acknowledged that restorative justice has no real, hard and fast rules and regulations, and so caution should be exercised in applying it to these communities.

References

A Shifting Paradigm: Modern Restorative Justice Principles Have Their Roots in Ancient Cultures, Reginald A. Wilkinson, Corrections Today, Dec. 1997.
Similarities and Differences Between Family Group Conferencing and Victim-Offender Mediation, Family Group Conferencing: Implications for Crime Victims, Mark S. Umbreit, Ph.D., Center for Restorative Justice & Peacemaking (formerly Center for Restorative Justice & Mediation), School of Social Work, University of Minnesota St. Paul, Minnesota, Apr. 2000.
Restorative Justice FAQ, Victim Offender Mediation Association.
Community Restorative Board, Restorative Justice Fact Sheet, U.S. Department of Justice.
Sentencing Circles, Restorative Justice Fact Sheet, U.S. Department of Justice.
, Peacemaking Circle process (Minnesota)
Annual Report FY 2004, Restorative Justice Program, Prince William County Office of Dispute Resolution, 2004.
The Effectiveness of Restorative Justice Practices: A Meta-Analysis, Research and Statistics Division Methodological Series, Department of Justice Canada, 2001.
Walker, L., E Makua Ana Youth Circles: A Transition Planning Process for Youth Exiting Foster Care, 2005, VOMA Connections No. 21,
Hopkins, B., Just Schools: A Whole School Approach to Restorative Justice, Jessica Kingsley Publishers, March 2004, 208 pages.
Doolan, M. (1999, August 7). The family group conference – 10 years on. Paper presented at Building Strong Partnerships for Restorative Practices Conference, Burlington, VT, USA. http://www.restorativepractices.org/library/vt/vt_doolan.html
O’Connell, T. (1998, August 6). From Wagga Wagga to Minnesota. Paper presented at the First International Conference on Conferencing, Minneapolis, MN, USA. http://www.restorativepractices.org/library/nacc/nacc_oco.html
O'Connell, T., Wachtel, B., Wachtel, T. Conferencing Handbook: The New Real Justice Training Manual. Pipersville, PA: The Piper's Press.
McCold, P. (2003). A survey of assessment research on mediation and conferencing. In L. Walgrave (Ed.), Repositioning Restorative Justice (pp. 67-120). Devon, UK: Willan Publishing.
McCold, P., & Wachtel, T. (2003, August). In pursuit of paradigm: A theory of restorative justice. Paper presented at the XIII World Congress of Criminology, Rio de Janeiro, Brazil. Retrieved October 25, 2007, from http://www.realjustice.org/library/paradigm.html.
American Humane Association (2003). FGDM research and evaluation. Protecting children, 18(1-2): whole volume.
Simon, B. (1994). The empowerment tradition in American social work. New York: Columbia University Press.
Nelsen, J. (1996). Positive discipline (2nd Ed.). New York: Ballantine Books.
Denton, D. (1998). Horizontal management. Lanham, MD: Rowman and Littlefield.
McCold, P. (1999, August 7). Restorative justice practice – The state of the field. Paper presented at Building Strong Partnerships for Restorative Practices Conference, Burlington, VT, USA. Retrieved December 6, 2007, from http://www.restorativepractices.org/library/vt/vt_mccold.html
Morris, A., & Maxwell, G. (2001). Restorative conferencing. In Bazemore, G. & Schiff, M. (Eds.), Restorative community justice: Repairing harm and transforming communities (pp. 173-197). Cincinnati, OH: Anderson Publishing Co.
Denborough, D. (Ed.) (1996). Beyong the prison: Gathering dreams of freedom. Adelaide, South Australia: Dulwich Centre Publications.