81-260-1 Chapter 12

Chapter 12

RESTORATIVE JUSTICE

Juvenile Justice: An Introduction, 7th ed.

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What You Need to Know• Restorative justice seeks to repair the harm done to both the

victim and the community, while simultaneously changing the behavior of the offender.

• A primary argument used to explain restorative justice is the idea of reintegrative shaming, which argues that shame can be used in a positive fashion to bring offenders back into society.

• Restorative justice takes four primary forms: victim-offender mediation, family group counseling, neighborhood reparative boards, and sentencing/peacemaking circles.

• Victim-offender mediation, also called victim-offender reconciliation programs, involves bringing the victim and offender together with a mediator to try and arrive at an understanding of all positions and find a solution agreeable to both parties.

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What You Need to Know (cont.)• Family group conferencing includes family members, friends,

and support groups with the victim and offender in trying to find a solution to the issues.

• Neighborhood reparative boards do not require victim participation and require the offender to make amends, restore the victim and community to the pre-offense state, and help the offender understand what he or she did.

• Sentencing circles are open to anyone in the community and are often a part of the court. The sentences can include virtually anything, including jail time.

• Evaluations of restorative justice reveal a great deal of satisfaction among participants and some reduced recidivism, although a great deal of additional research is needed.

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Introduction• Restorative justice - Concerned with repairing the damage

or harm done to victims and the community through a process of negotiation, mediation, victim empowerment, and reparation.

• Restorative justice - About relationships — how relationships are harmed by crime and how they can be rebuilt to promote recovery and healing for people affected by crime.

• This chapter examines the idea of restorative justice as a means of addressing the needs of youthful offenders, victims, and the community.

• Restorative justice - A major shift from existing practices. Consequently, it is important to define and discuss the philosophical and practical differences between restorative justice and most juvenile justice system activity.

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Background of Restorative Justice• Over the past 30 years, there has been an increasing

call for programs that pay more attention to the combined needs of victims, offenders, and the community.

• The concept of restorative or reparative justice seeks to use interventions that return the victim and offender to their pre-offense states. – For offenders, it means assuring that the action will not be

repeated.– For victims, this means repairing the harm done. For the

community, it means returning things to their state prior to the offensive behavior.

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Background of Restorative Justice (cont.)

Retributive Justice • Generally focuses on the

lawbreaker and the imposition of sanctions for the purposes of deterrence, vengeance, and/or punishment.

• A criminal act is viewed as an offense against society or the state, and the victim is nothing more than a witness for the state.

Restorative Justice• Seeks to repair the harm that

was done to both the victim and the community, while simultaneously changing the behavior of the offender.

• Sees crime as an act against the victim and community, and the focus shifts from what is best for the state to repairing the harm that has been committed against the victim and community.

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Precursors to Restorative Justice• Restorative justice has been the dominant model of criminal

justice throughout most of human history for all the world’s peoples.

• The earliest codified laws, such as the Law of Moses, the Code of Hammurabi, and Roman laws, all outlined the responsibility of individuals to deal with criminal acts committed against them.

• The very bases for the development of a juvenile court and juvenile justice system are found in restorative justice principles.– The parens patriae philosophy of the juvenile court focuses not on

the offense but the offender and the actions needed to help the youth. Therefore the emphasis was not on punishment.

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Precursors to Restorative Justice (cont.)• Dispute resolution - One can trace modern dispute resolution

back to the early 1970s. During this time, a number of jurisdictions started programs to divert minor disputes out of the formal court system.

• Dispute resolution- A mechanism for achieving a number of goals simultaneously:– First, the parties involved in the situation work together to resolve the

problem rather than having some outside authority impose a solution. – Second, any dispute that reaches a settlement is one less case with

which the formal justice system must contend. This alternative alleviates some congestion in the court system.

– Third, this informal approach empowers victims by giving them a direct voice in their own matters. Victims retain complete veto power over the final outcome.

– Finally, dispute resolution provides the victim with a face-to-face encounter with the offender.

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• Dispute resolution - Programs can vary in terms of the cases they handle or the procedures they use. They typically share five traits in common;1. A third-party mediator is involved.2. Disputants usually know each other.3. Participation must be voluntary.4. Processes are informal.5. Disputants are usually referred to the process by

someone in the criminal justice system.

Precursors to Restorative Justice (cont.)

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Precursors to Restorative Justice (cont.)• Conflict resolution programs - Utilized to teach youths

alternative methods for resolving conflicts before they occur. • Peer mediation programs- Bring together disputing parties

with a peer mediator to discuss the situation and attempt to

resolve the dispute to the satisfaction of both parties. – In many cases, there is no clear victim and offender. Instead, the two

parties are involved in an argument or disagreement that, left unchecked, could escalate into a physical confrontation.

– The goal of the mediation is to defuse the situation before it reaches that stage and to keep it from occurring again in the future.

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The Theoretical Basis of Restorative Practices

• The basic argument underlying restorative justice is that reactions to crime and harmful behavior should seek to repair the harm done to the individual victim and society while simultaneously reintegrating and addressing the needs of the offender. – Repairing harm (to victim and community)– Engendering stakeholder involvement (victims,

offenders, families, and community)– Transforming the role of community and government

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The Theoretical Basis of Restorative Practices (cont.)

• Exchange theory - Proceeds from the assumption that equal reciprocity is a cornerstone of social interaction.– The offender is expected to make amends for the harm

caused, in exchange for reintegration back into society

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• Reintegrative shaming - Rests on the assumption that typical processing of offenders through the criminal justice system serves to isolate the offender and stigmatize him or her.– Shame can be used in a positive fashion to bring the

offender back into society. – Under reintegrative shaming, the system needs to

express its disapproval of the criminal activity while simultaneously forgiving the offender for the action if the offender is willing to learn from the event and make reparations to the victim and society.

The Theoretical Basis of Restorative Practices (cont.)

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The Theoretical Basis of Restorative Practices (cont.)

• Collective efficacy - Transform communities into active participants in controlling problem youths and socialize them into proper societal roles. Community members need to feel empowered to do something about problems.

• Social disorganization - Can mitigate the ability of residents to effect change and control in the area. – Restorative justice offers a mechanism to build the social

capital necessary to address youthful offenders and the causes of misbehavior.

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Types of Restorative Justice• Four primary aims to restorative justice:

1. Empowerment - Reflects the need for all interested parties to be involved in the process. This provides a sense of legitimacy for both the victim and the offender.

2. Restoration - Refers to repairing the harm done to all participants. At the same time, retribution is disavowed as a legitimate response to the behavior.

3. Reintegration- of both the offender and the victim into the community, without the stigma of being an offender or being different from the other community members.

4. Emotional harm- of both the victim and the community, must be addressed.

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Types of Restorative Justice (cont.)• Achieving those primary aims requires that the

restorative approach be grounded on two additional factors:1. Procedural fairness - Refers to the fact that the process

must respect all the parties involved. The rights (both legal and human) and wishes of all participants must be recognized as legitimate by the participants.

2. Satisfactory outcome - Means that all parties agree with the proposed resolution and are willing to follow through with the plan of action. The failure to achieve procedural fairness and a satisfactory outcome from the process itself will make it impossible to fully realize the major aims of restorative justice.

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Types of Restorative Justice (cont.)• Victim–offender mediation (VOM) - Also referred to as victim–

offender reconciliation programs (VORPs), is a direct outgrowth of the dispute resolution/dispute mediation programs of the early 1970s, and is considered the oldest form of restorative justice.

• The basic premise of VOM is that the criminal/victimization incident and its consequences are complex and beyond the ability of the criminal code to address on its own.

• Where the formal criminal justice response to crime is to simply impose the sanction outlined in the statutes, VOM seeks to deal with the needs of both the victim and the offender. – Perhaps the most important concern addressed in VOM meetings is to

identify for the offender the types and level of harm suffered by the victim as a result of the crime.

– The victim is given the opportunity to express his or her concerns about the crime and his or her loss.

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• Neighborhood reparative boards (NRBs) – also called neighborhood accountability boards – have existed since the mid-1990s and typically deal with nonviolent youthful offenders. – Not unlike other restorative practices, NRBs seek to restore the

victims and community to pre-offense states, require the offender to make amends, and aid the offender in understanding the impact of his or her actions on the victim and community.

• Family group conferencing (FGC) - The greatest difference between FGC and VOM is the inclusion of family members, close friends, and other support groups of the victim and offender in the conferences. – There is also the possibility of including criminal justice system

personnel, including social workers, police officers, and an offender’s attorney.

Types of Restorative Justice (cont.)

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• Peacemaking circles - Based on Canadian First Nation practices and began formal operation in the early 1990s. Circles invite members from across the community to participate in determining the appropriate sanctions for offenders. – Participants in circles typically include all of the parties found in FGCs, as

well as general community members who wish to be included.

• Sentencing circles - May function as either a part of the court or separate from the court. The intended outcome of the circle is consensus on a plan of action that may include a wide array of activities.– Plans of action may include further meetings between the victim and

offender, apologies by the offender, restitution, community service, treatment/rehabilitation programs, and/or explicit sentencing recommendations to the trial judge

Types of Restorative Justice (cont.)

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The Impact of Restorative Justice

• Restorative justice programs are intended to have a number of different possible outcomes, including rehabilitating the offender and repairing the harm done to the victim.

• Satisfaction, fairness, and compliance - Assessments of the impact of restorative justice have most often relied on outcomes such as victim satisfaction, feelings of fairness by victims, and compliance with the agreements.

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– Current results contrast greatly with those found in analyses of formal criminal justice system processing, in which victims and offenders report lower satisfaction and feelings of fairness.

– Participants in fully restorative programs report higher levels of satisfaction and perceived fairness, followed by those in mostly restorative programs. Individuals from programs rated as not restorative report the lowest levels of satisfaction and fairness.

The Impact of Restorative Justice

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• Satisfaction, fairness, and compliance - The success of restorative justice programs is also measured in terms of the ability of the meetings to achieve consensus on a solution and whether the parties carry through with the agreement.

• Recidivism - Reducing reoffending is an important restorative goal, particularly in a discussion of juvenile justice. – It appears that earlier studies of recidivism did not show consistent

reductions in recidivism but that more recent studies have shown recidivism reductions.

– In fact, a recent meta-analysis of 35 restorative justice programs found that two-thirds of the effect sizes showed such reduction in recidivism.

– The restorative justice programs also resulted in higher victim satisfaction and that offenders were more likely to comply with restitution orders.

The Impact of Restorative Justice (cont.)

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Problems and Issues with Restorative Justice

1. Restorative justice programs may be too ambitious in their attempt to solve very complex societal problems.

2. Related to the first problem is that restorative justice has been used primarily with less serious and property crimes. There is a great deal of debate over whether this approach can be used successfully with serious violent offenses.

3. There exists a concern that, while voluntary, there is an underlying level of coercion in most programs. What makes this truly problematic is that many programs do not allow the presence of defense attorneys, thus raising the issue of violation of an accused individual’s constitutional rights and procedural safeguards.

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Problems and Issues with Restorative Justice (cont.)

4. There is concern over how the “community” is defined and who is allowed to represent the community. This can be a very important concern because the participants help mold the outcome and the expectations for the solution.

5. There is a distinct imbalance of power in most restorative justice programs. This is especially problematic when juvenile offenders must face not only the victim but also the victim’s support groups, members of the criminal justice system, and strangers from the general community.

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Problems and Issues with Restorative Justice (cont.)

6. The issue of net-widening: Net-widening refers to the situation in which the introduction of a new program or intervention serves to bring more people under the umbrella of social control. This is especially problematic when the new programs are intended to take people currently being served in the formal justice system in order to divert them to the new program.