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Georgetown University Law CenterScholarship @ GEORGETOWN LAW
2007
Restorative Justice: What is it and Does it Work?Carrie
Menkel-MeadowGeorgetown University Law Center,
[email protected]
Georgetown Public Law and Legal Theory Research Paper No.
1005485
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ANRV327-LS03-10 ARI 13 July 2007 21:27
RE V
I E W
S
IN
AD V A
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Restorative Justice: What IsIt and Does It Work?Carrie
Menkel-MeadowGeorgetown University Law Center, Washington, DC
20001;email: [email protected]
Annu. Rev. Law Soc. Sci. 2007. 3:10.1–10.27
The Annual Review of Law and Social Science isonline at
http://lawsocsci.annualreviews.org
This article’s doi:10.1146/annurev.lawsocsci.2.081805.110005
Copyright c© 2007 by Annual Reviews.All rights reserved
1550-3585/07/1201-0001$20.00
Key Words
reconciliation, reintegration, community, victims,
offenders,criminal law, crime and punishment, human rights,
reparations,international law
AbstractThis article reviews the now extensive literature on the
varied arenasin which restorative justice is theorized and
practiced—criminal vio-lations, community ruptures and disputes,
civil wars, regime change,human rights violations, and
international law. It also reviews—byexamining empirical studies of
the processes in different settings—how restorative justice has
been criticized, what its limitations andachievements might be, and
how it might be understood. I explorethe foundational concepts of
reintegrative shaming, acknowledg-ment and responsibility,
restitution, truth and reconciliation, andsentencing or healing
circles for their transformative and theoreticalpotentials and for
their actual practices in a variety of locations—family abuse,
juvenile delinquency, criminal violations, problem-solving courts,
indigenous-colonial-national disputes, ethnic andreligious
conflicts, civil wars, and liberation struggles.
Restorativejustice, which began as an alternative model of criminal
justice,seeking healing and reconciliation for offenders, victims,
and thecommunities in which they are embedded, has moved into
larger na-tional and international arenas of reintegration in
political and ethnicconflicts. This review suggests that there are
important and seriousquestions about whether restorative justice
should be supplemen-tal or substitutional of more conventional
legal processes and abouthow its innovations suggest potentially
transformative and challeng-ing ideas and “moves” for dealing with
both individual and grouptransgressive conduct, seeking peace as
well as justice.
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INTRODUCTION: CONCEPTS,DEFINITIONS, AND PURPOSESOF RESTORATIVE
JUSTICE
To its conceptual and practical founders(John Braithwaite,
Howard Zehr, and MarkUmbreit, among others), the field of
restora-tive justice is an effort to transform the way wethink of
punishment for wrongful acts. Whena crime or serious bad act (which
may includemore classes of activity than those legally la-beled
criminal) occurs, it effects the victims,offenders, interested
bystanders (such as fam-ily members, employees, or citizens), and
thelarger community in which it is embedded. Toparaphrase one of
the field’s founders (Zehr2002, Zehr & Mika 1998), these bad
acts orruptures in human interaction create needsand
responsibilities for the direct participantsin the act, as well as
for the larger societyin which their act(s) occur. Restorative
jus-tice is the name given to a variety of differ-ent practices,
including apologies, restitution,and acknowledgments of harm and
injury,as well as to other efforts to provide heal-ing and
reintegration of offenders into theircommunities, with or without
additional pun-ishment. Restorative justice usually involvesdirect
communication, often with a facilita-tor, of victims and offenders,
often with someor full representation of the relevant
affectedcommunity,1 to provide a setting for acknowl-edgment of
fault by the offender, restitutionof some sort to the victim,
including both af-fective apologies and material exchanges
orpayments, and often new mutual understand-ings, forgiveness, and
agreed-to new under-takings for improved behaviors. In its
mostidealized form, there are four Rs of restorativejustice:
repair, restore, reconcile, and reinte-grate the offenders and
victims to each otherand to their shared community.
Restorative justice raises deep philosoph-ical, sociological,
and empirical issues. Thephilosophical literature focuses on the
pur-
1The notion of what the community is in restorative justiceis
one of some controversy (Weisberg 2003).
poses and nature of wrongdoing and punish-ment (Gabbay 2005,
Blumenson 2006) and isonly briefly reviewed here. At both the
philo-sophical and sociological level, restorative jus-tice raises
important questions about whoshould have power, control, and
possessionover crime, acts of wrongdoing, punishment,restitution,
reconciliation, and community in-terests (Christie 1977,
Menkel-Meadow 1995,Von Hirsh 2003). When an act of wrong-doing is
committed, who has an interest inits rectification: the victim, the
community,the offender, those affected by the act, orthe larger
society? Who decides what jus-tice is: the victim (who might want
vengeanceor restitution), the state (who will want todeter future
crimes and acts of wrongdoing,set precedents for others, and
establish so-cial control), or the community in which thewrongdoing
is embedded (where motivationsmay vary from revenge to the desire
to re-claim every community member)? Who hasthe power to forgive
and accept restitution orreconciliation: the victim, the victim’s
family,the community in which the wrong occurred,or the state? What
if acts of wrongdoing af-fect both individuals and a larger
commu-nity, such as hate crimes or genocides? Ifcrime or other acts
of wrongdoing are a col-lective hurt or tear in the social fabric,
canindividuals forgive on behalf of anyone be-sides themselves? Are
crime victims adequateproxies for the rest of a society that
maydefine justice differently (more harshly, lessharshly)? How are
we to know what the properunit of analysis is for measuring
appropriateforms of punishment or restitution? What isthe proper
balance between victim-offenderreconciliation, community peace, and
socialorder or justice? (Similar issues have beenraised in the
civil sphere of dispute process-ing; see Menkel-Meadow 1995, 2006.)
Howshould we integrate both the public and pri-vate aspects of
crime and wrongdoing? Shouldright-making of wrongdoing be backward
fac-ing (punishment and legal justice) or futurefacing
(reconciliation, restoration, and socialjustice)?
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Whatever one’s views on these impor-tant philosophical and
criminological issues,the question remains: Does restorative
justicework? Does it meet its own claims of reducedrecidivism,
restored communities, and reinte-grated offenders? Is restorative
justice moreefficient (less costly, more deterrent,
morerestitutionary) than more conventional formsof punishment? Is
it more fair or just (as per-ceived by participants or as analyzed
by exter-nal, objective, and professional measures ofthese illusive
concepts). This article reviewsthe extant findings, which do
demonstratesome support for restorative justice claims,while also
raising questions about the (limited)conditions under which
restorative justicemay be most effective. The next major issueof
evaluation in the field is whether even suc-cessful victim-offender
restorative justice canbe scaled up to national levels of political
andcivic reconciliation, either through truth
andreconciliation–like processes or through repa-rations (Bradford
2005, Brooks 1999, Brophy2006).
Restorative justice as a social practice andmovement began, in
its modern incarnation,in the 1970s as a response to what was
consid-ered to be an overly harsh criminal justice sys-tem that
neither effectively deterred crime norsuccessfully rehabilitated
offenders. Champi-oned by social workers, progressive
criminaltreatment professionals (including police of-ficers and
prison reformers), some lawyersand judges, psychologists, and
community andpeace activists, restorative justice was prac-ticed
first (Lerman 1999), and theorized later,most eloquently by John
Braithwaite (1989,1995, 1999, 2002, 2003, 2006). Restorativejustice
proponents suggested that by provid-ing structured environments in
which offend-ers and victims met and explained their in-juries and
hurts to each other, offenders couldacknowledge and explain their
bad acts, apol-ogize, and make restitution to victims whocould
forgive and feel safe again. With fam-ily members or community
representativespresent, there would be public accountabil-ity, an
inquiry into root causes of criminal
or wrongful acts, and, at its best, suggestionsfor creative,
tailored solutions. Restitutionarypossibilities would emerge from
facilitated di-alogue. Through structured shaming (Kahan1996, 2006;
cf. Markel 2007), responsibilitytaking, and acknowledgment of
injury done,offenders might be effectively reintegratedinto their
communities, and victims would nolonger be frightened or
traumatized by whathad happened to them.
From the beginning, restorative justicepractices were intended
to heal at both theindividual and group or social level.
Attentionin both practice and theory was placed onhealing those
directly affected by a crime orbad act and on institutional and
social reform.At its most aspirational or utopian,
restorativejustice has been seen as a potentially transfor-mative
social practice that could, under theright conditions, obviate the
need for harshcriminal punishment and incarceration. Inthis
conception, restorative justice was linkedas a social movement to
community orga-nizing, criminal justice and prison reform,the civil
alternative dispute resolution (ADR)movement (Menkel-Meadow et al.
2005), andthe peace movement in that it sought alterna-tive
processes for different and more humaneand tailored outcomes. In
its more groundedand practical institutionalized forms,
restora-tive justice was often supplemental, notsubstitutive, to
conventional criminal pro-ceedings. In an early core definition
ofrestorative justice, it is a “process that bringstogether all the
parties affected by an incidentof wrongdoing to collectively decide
how todeal with the aftermath of the incident and itsimplications
for the future” (Marshall 1998,Roche 2004). Although some think
restora-tive justice is most appropriate in the contextof small,
interpersonal wrongful acts, such aspetty thefts, simple assaults,
drug- or alcohol-related crimes, and family abuse,
restorativejustice has been adapted for cases involvingmurder,
rape, genocide, and other serioustransgressions against large
groups or even awhole society (Umbreit et al. 2005, Wellikoff2004).
It has also been used effectively as
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a model for pre- or nonlegal disputes inschools, organizational
and corporate conflictmanagement, neighborhoods, communities,and
families (Llewellyn & Howse 1998).
What began as a domestic social re-form movement (simultaneously
developed inAustralia, New Zealand, Canada, the UnitedStates, the
Netherlands, Austria, and oth-ers), restorative justice and its
basic princi-ples became a process of international in-terest when
Desmond Tutu (1999) led atruth and reconciliation process to
transformand heal South African society’s transitionfrom apartheid
to a just, multiracial society.Variations on indigenous [such as
Rwandangacaca (Honeyman 2004, Bolocan 2004, Raper2005) and Ugandan
mato oput (Blumenson2006)] and newly minted restorative
processes(Avruch & Vejarano 2001) have now beenused in more
than 25 national efforts to movemore peacefully through political,
racial, eth-nic, and civil wars and transitions to morepeaceful,
democratic, and just states. Restora-tive justice principles thus
helped form a newfield of international law and political
struc-ture: transitional justice (Teitel 2000).
Restorative justice has several foundationalconcepts that have
now been elaborated andextended to many arenas of social and
politicalinteraction:
� Personalized and direct participation ina process of speaking
and listening ofboth a wrongdoer (offender) and a vic-tim of an act
of wrongdoing;
� Narration of what an act of wrongdoingconsisted of and the
harm or injury itcaused to those affected (including bothdirect
victims and often others, includ-ing bystanders and the larger
commu-nity);
� Explanation by the offender of what wasdone and why;
� Acknowledgment and acceptance offault for the wrong committed
by theoffender with recognition of the harmcaused (with apology, if
not coerced);
� Opportunity for appreciation or under-standing of why the
wrong occurred
(root causes) and, in some cases, forgive-ness of the
individual, without forgetful-ness of the act;
� Consideration of appropriate outcomesor restitution to those
wronged by allparticipants, including victim, offender,family
members, and/or larger commu-nity, often with expert
facilitation;
� Reintegration of the wrongdoer intothe larger community,
through apol-ogy, restitution, and/or support and so-cial services
provided (alone or in con-junction with formal punishment
aswell);
� Reconciliation of wronged and wrong-doer, within a renewed
commitment toshared social norms (often reconstitutedwithin the
restorative process);
� An orientation to the wrongdoer thattreats the act separate
from the personso that the person may be redeemed asthe
victim/community is repaired;
� An orientation to the future, to the ex-tent possible, to make
right what waswrong and to rebuild new relationshipsand new
communities.
These foundational concepts come from a be-lief that
conventional legal processes (crim-inal, international tribunals,
and even civilprocesses) are often ineffective in their
bu-reaucratic separation of offender from theactual consequences of
acts, in the timingof any remedial actions (delayed incarcera-tions
or other punishments), and in the inat-tention to the personal
nature of the wrong(both for rehabilitation of the offender
andrestitution of the particular harm suffered bythe victim), not
to mention in their failureto deter or reduce crime. Restorative
justicehopes to harness the commission of wrong-ful acts to the
making of new opportunitiesfor personal, communal, and societal
growthand transformation through empowerment ofboth victims and
offenders in direct and au-thentic dialogue and recognition. It
also hopespractically to reduce recidivism and reinte-grate
wrongdoers into more positive roles andrelationships.
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At the theoretical level, most proponentsof restorative justice
claim that such processesreclaim the property of the crimes or
conflictsfrom their ownership and mismanagement bythe state
(Christie 1977) and return them tothe victims and offenders whose
lives are mostaffected. As with the civil ADR movement,restorative
justice proponents claim that out-comes can be creatively tailored
to meet therequirements and needs of the situations andthe parties.
Thus, there will be higher ratesof compliance and greater
satisfaction withthe process itself, encouraging belief in its
le-gitimacy and its ability to rectify wrongs andrepair broken or
harmed social relationships.Restorative justice is designed to
remove neg-ative stigmatization of the individual and re-place it
with recognition of the wrongful-ness of an act, with shaming of
the act, andwith reintegration of the person (Braithwaite2002;
Strang 2001, 2004). As an ideology andas a practice, restorative
justice often appealsacross the political spectrum, with
liberalsseeking criminal justice reform through per-sonalized
treatment, compassion, and under-standing for socially
disadvantaged offenders,and conservatives approving of offender
ac-countability, responsibility, and restitutionarypayments to
victims (Barnett 1977). When itworks most effectively, restorative
justice en-hances participatory and deliberative democ-racy and can
promote community building,political legitimacy, and the
development ofnew social and legal norms. Progressive the-orists
and practitioners see in restorativejustice another form of
participatory delib-erative democracy; conservative theorists
seedevolved and localized governance for crimecontrol.
Although there are many contested the-oretical and practical
issues in the uses ofrestorative justice at its different levels
(per-sonalistic wrongs, less serious crimes, seri-ous crimes, state
crimes, crimes or wrongsagainst humanity) that are reviewed
below,recent scholarship (Strang 2004, Johnstone2003, Roche 2004,
Strang & Braithwaite2000, Minow 1998) on these issues has
en-
abled a relatively coherent set of issues, re-search questions,
and objections to be de-veloped across levels of analysis and uses
ofrestorative processes. Such issues include:
1. Whether restorative justice processesare effective in meeting
their ownclaimed advantages, such as reduced re-cidivism rates;
increased rates of rein-tegration to a nonoffender life; move-ment
toward reconciled, postconflictsocieties;
2. Whether victims feel coerced or black-mailed to participate,
forgive, forget,and forego (desires for revenge or
otherretributivist goals) (Acorn 2004, Brown1994);
3. Whether offenders feel coerced to con-fess, apologize, and
waive the rights ofthe criminally accused (Dolinko 2003,Delgado
2000, Brown 1994);
4. Whether restorative processes—likeother alternative processes
that focuson direct, but informal, narrative—privilege some (the
articulate, theverbal) and disadvantage others [theless verbal; the
racially, gendered, orclass-based disadvantaged (Young 1990,2000;
Daly 2002, 2005; Cahn 2006)];
5. Whether certain classes of wrongdoingshould never be
submitted to restorativeprocesses, e.g., serious crimes such
asmurder, rape, or wrongdoing in whichsociety as a whole, not just
individ-uals, is affected, such as genocide orhate crimes (Robinson
2006, Rugge &Cormier 2005);
6. Whether particular wrongdoers or of-fenders (or victims)
should be excludedfrom restorative processes, e.g.,
repeatoffenders, the mentally impaired, thosewho are
remorseless;
7. Whether psychological or sociallybased communication
technologies atthe individual level are effective formacro
institutional, national, and largersocial problems;
8. Whether restorative justice can orshould substitute entirely
for state and
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formal criminal sanctions and punish-ments or whether it should
be a totallyinformal and voluntary supplementaryprocess;
9. Whether restorative justice is more eco-nomically and
criminologically efficient(less costly, more deterrent) than
con-ventional criminal justice methods;
10. Whether a focus on future remediationor right-making
diminishes importantconcerns about blame for past
wrongs(Menkel-Meadow 2004, Grillo 1991);
11. Whether individualized forms ofrestorative justice can meet
the re-quirements of equity-based justiceor equality when similarly
situatedoffenders are provided with differentialoutcomes (Robinson
2006);
12. Whether privatization of justice in thecriminal context
(whether individualor at larger state levels) deprives usof the
public function of courts, tri-bunals, punishments, and
precedent-setting (Luban 1995);
13. Whether private criminal justice canoperate within the
shadow of the law,with both the potential coercion of thestate as a
threatened alternative, or as aweak substitute where there is no
formallaw enforcement (international criminallaw);
14. Whether participation in restorativejustice procedures
enhances both indi-vidual and communitarian sensibilitiesfor
empowerment, fairness, legitimacy,satisfaction, and social
justice;
15. Whether restorative justice is a spiri-tual, utopian
project, with a faith in hu-man ability to be transformed, at
bothindividual (Katz 1990) or group lev-els (Gibson 2004a), and
whether it canbe harnessed to practical, institutional,large-scale
social and legal change.
This article reviews the claims made forrestorative justice and
the difficult and com-pelling issues raised by its use and offered
byits critics to discount its achievements andpossibilities. I
begin by recounting some of
the history of restorative justice in its var-ious forms, with
its differentiated claims. Ithen explore some of the most trenchant
cri-tiques that have been made of restorative jus-tice at
philosophical, social, political, jurispru-dential, and practical
levels. Next, I report onwhat we know to date about how
restorativejustice actually works from a variety of empir-ical
sources, including several meta-analysesperformed by others.
Finally, I suggest whatissues and challenges lie ahead for both the
useand assessment of restorative justice efforts inindividual,
community, national, and interna-tional efforts to deal effectively
with human-inflicted harm.
FORMS AND MODELS OFRESTORATIVE JUSTICE
Although in one sense restorative or restitu-tionary justice is
as old at least as the earli-est forms of classical justice in
Greek, Arab,and Roman legal culture (Braithwaite 2002),modern
restorative justice traces its origins toobjections to both
retributivist and failed re-habilitative models of criminal law and
pun-ishment. Victim control of the prosecutionof wrongful acts was
a common practice be-fore the modernization of the criminal
jus-tice system in the late Middle Ages in Europe(Langbein 2003)
relocated the managementof crime from private citizens to the
state.State control of crime developed to providerevenue for the
state (in fines and punish-ments) and more order and control (and
eq-uity) in the treatment of offenders. State con-trol of criminal
acts was also a product ofthe fear of vigilante or vengeance
motives onthe part of victims, which actually perpetu-ated
violence, as needs for less bloodthirstyand more orderly outcomes
were required,not only as religious, social, and humanitar-ian
values evolved, but also to provide somepredictability for the
growing commercial so-ciety and increasingly centralized political
or-der (Thompson 1976). Although fines andjail terms began to
substitute for blood feudsin postmedieval Europe, elements of
violent
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retributivist and vengeance-seeking systemsof justice continued
to coexist with localrestorative forms of community moots or
me-diation in many cultures. The history of crimi-nal justice and
punishment is one of increasingstate control and surveillance
(Foucault 1979),with concomitant increased costs of public
in-stitutions and public responsibility, with littledemonstrated
reduction of crime, violence, orantisocial acts (cf. Zimring
2006).
The twentieth century was certainly themost violent of all
centuries at nation-state,group, and individual levels, even with
themodern criminal and penological apparatusthat had developed by
then. Aside from Angloand middle European criminal justice modelsof
punishment (incapacitation, incarceration,retribution,
rehabilitation), other legal cul-tures have long focused on
restorative, repara-tive, or restitutionary forms of justice,
includ-ing community moots, wise elder mediation,religious forms of
repentance and reparation,and various forms of communal
conferenc-ing (nanante, ubuntu, gacaca) in the MiddleEast, Africa,
and Asia and peace circles in in-digenous American (both North and
South)cultures. All these forms of justice or dis-pute resolution
involve some narration beforevictims, offenders, family members,
support-ers, community members, and leaders, withcommunally arrived
at outcomes (fines of ani-mals, crops, other goods, or money;
reparativework; and often ritual ceremonies of healingand
forgiveness, including the sharing of com-mon food and drink, as
well as dances, songs,and other expressive activities). Most
repar-ative forms of justice were scaled to smallercommunities
where mobility for both offend-ers and the community was limited
and con-tinuing face-to-face contacts with communitymembers were
the norm.
As state control embraced more social con-trol of criminal
offenders, both through for-mal legal processes and therapeutic
interven-tion models, reformers began to experimentwith new forms
of handling (I never say man-aging) wrongdoing. In the early 1970s,
bothin Canada and the United States, contem-
poraneously with similar movements in civiland family law toward
mediation, experimen-tal programs in victim-offender
reconciliationprograms (VORP) or victim-offender media-tion (VOM)
(Umbreit 1994) were establishedalongside or within progressive
court sys-tems, some as diversionary programs for mi-nor crimes,
others as independent processes.By the mid-1990s, there were
hundreds ofprograms in many states and provinces ofthe United
States and Canada. These earlyprograms focused on facilitated
conversationsof wrongdoers, victims, and family membersboth as
supporters and as possible disciplinar-ians or enforcers. These
programs sometimesserved as alternatives to state
prosecutions(dismissals if victims agreed and were oth-erwise made
whole). VORP and VOM wereoften founded by social reformers,
progres-sive criminal law professionals (including po-lice,
probation and parole officers, and socialworkers and some lawyers
and judges), and,notably, by religious groups, such as the
Men-nonites, who brought their reparative philos-ophy to bear on
all forms of conflict resolution(Zehr 1990, Lederach 1997).
Some of the developments in the 1970swere sparked by First
Nation practices inCanada (Stuart 2001) for “peace or sentenc-ing
or family circles” used both for internalwrongs committed within
tribes and then laterexpanded to First Nation land and other
dis-putes with the larger nation-state (Bradford2005). These
practices enlarged the notion ofwho was a proper participant or
stakeholder inconflicts involving harm to other members ofthe
community. A more flexible, tailored, andcommunitarian sense of
justice or fairness, in-cluding group responsibility for bringing
in-dividuals back into the community, charac-terized many of these
programs. “Healing orpeace circles” of a variety of North
Americannative groups, including the Navajo (Yazzie& Zion
1996), brought native practices to theattention of conventional
court systems. Pro-cesses including “talking sticks” that
rotateamong participants and equalize who will talk(especially in
leaderless groups) are radically
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different from legalistic and adversarial con-frontations. The
purpose of such conferencesis often not to assess fault or guilt
(with fact-finding), although there is narration of whathappened
and why, because usually fault orguilt is admitted. The purpose of
the circleor conference is to consider the best ways tomake the
victim whole or compensated and toconsider various forms of
treatment or reinte-gration of the wrongdoer. With the emphasison
remedial approaches (for both victims andoffenders), considered
from a collectivity (thecommunity, tribe, family, or other
represen-tatives), power is not located in a single judge,and the
norms that are referenced may be ne-gotiated and interpreted for
particular cases,with less emphasis on formal rules and stan-dards.
These processes have many variations,including referral back to
courts if wrongdo-ers do not admit fault or victims are not
sat-isfied with apologies or restitutionary offerswhen laws have
been violated. In other cases,the state may defer to some other
form of au-thority (Indian tribes, local law enforcement,etc.),
provided there is full participant consentor other legal
authorization.
Perhaps the greatest and deepest impact ofthese new processes
was seen in New Zealand,where family conferencing modeled on
bothtraditional Maori and modern practices de-veloped into a
mandatory model for juvenilejustice (Maxwell & Morris 1993).
Here themovement represents collaboration amongmainstream
conservative and social demo-cratic political parties, Christian
profamilygroups, and Maori philosophy and participa-tion
(Braithwaite 2002). In such family confer-ences, alternative
structures to conventionaladversary adjudication involve the
juvenile of-fender, teachers, social workers, family mem-bers,
victims, and others who jointly developa package of restitutionary
payments or ser-vice, apologies, and plans for future
behavior,often in lieu of incarceration. In sentencingcircles, a
community group helps develop pro-grams and proposals for
compensating victimsand preparing behavioral plans for
ameliora-tion of the conduct of the offender. Such pro-
grams, of course, have their critics (see be-low), both for
coercing compliance and alsofor reduction of criminal defendant
rightsin nations with strong civil liberties protec-tions (Delgado
2000). There is also some ev-idence that, when used in smaller,
homoge-neous communities (which are felt to be moreoppressive to
some adolescents than the coldstate), there is an increased risk of
flight fromthe community (Marshall 1998).
In the United States, the states makingmost use of these
programs are Minnesota,Vermont, Wisconsin, Maine, New
Mexico,Pennsylvania, and Montana, which employvarious forms of
victim-offender programs forjuveniles and for postconviction,
probation,parole, and “creative” sentencing. Less use ismade
currently at the federal criminal levelbecause of determinate
sentencing laws (Beale2003), although in earlier periods, the
federalcourts varied by region in how they deliv-ered tailored
justice to particular offenders,with contrasting retributivist and
rehabilita-tive goals (Utz 1978). A new development in-cludes
“problem-solving courts” (Kaye 1997,Berman et al. 2005) in which
restorative andrehabilitative principles have made their wayinto
the formal justice system, as special-ized courts in drug offenses,
vice, abuse, ne-glect, and other family issues have developedmore
reparative sentences, including person-alized treatment programs,
some elements ofrestorative shaming, and some structured en-counter
with victims, as well as regular report-ing and accountability
(e.g., drug tests) to thecourt itself (Dorf & Sabel 2000).
Restorative justice programs are intended,in ideology, to be
purely voluntary, but as-pects of restorative justice have been
co-optedinto mandatory diversionary and formal courtprograms,
raising questions of philosophicalpurity and efficacy and
challenging efforts tomeasure the impact of these programs.
Somemodels of restorative justice have been usedin prisons,
concurrent with and adjunct to for-mal punishment, and observers
fear that someoffenders may pay twice with formal crim-inal
sanctions and demands for less formal
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restitutionary or shaming rituals that re-duce their human
dignity (Nussbaum 2004).Restorative justice processes can also
beused following release, as conditions of pa-role or probation,
connecting the offenderto agreements with victims or the commu-nity
for social service, compensation, or ac-countability for behavioral
change. Althoughrestorative justice is motivated by those seek-ing
humanistic integration, it is easy to seehow some restorative
justice forms can ap-pear oppressive, reducing freedom of
action,and individual agency and requiring intrusivesurveillance
and accountability that can de-volve into counterproductive
resentment.
Restorative justice has, in recent years, in-formed a variety of
other legal and politicalprocesses. John Braithwaite argues for its
ef-fectiveness as responsive regulation in mat-ters of corporate
and public policy regulation.When state regulators engage in
negotiatedconversations with managers of corporationsand industries
(such as nursing homes, tradegroups, commercial enterprises),
Braithwaite(2002) argues, compliance is greater and dia-logues
allow more realistic, flexible, and con-tingent enforcement of
important legal stan-dards (see also Hawkins 1984).
Dispute resolution theorists and practi-tioners have argued that
public and delib-erative encounters in regulatory, civil,
andcriminal matters can be seen as a new formof governance,
promoting healthy democraticdeliberation that is more
participatory, le-gitimate, and flexible in its legal and
socialproblem solving when matters are openlynegotiated with many
stakeholders and whenmultiple issues and multiple parties are
in-volved in the deliberations (Menkel-Meadow2004, Elster 1995,
Bohman 1996).
In the 1990s, restorative justice practicesmoved outward from
individual acts of wrong-doing to the systematic wrongdoing of
civiland ethnic wars (by both intra- and inter-national state and
nonstate actors) and ille-gitimate regimes such as apartheid. The
useof TRCs and similar public panels of en-counters of victims and
offenders and the
larger nation-state and international com-munity has given rise
to whole new insti-tutions of justice (Avruch & Vejarano
2001,Minow 1998, Stromseth et al. 2006). Thesetruth commissions are
intended to providea new national narrative as victims seek
an-swers and information about their individualfamily members [what
happened to the disap-peared (Argentina, Chile), the murdered,
orthe incarcerated (Guatemala, Rwanda, SouthAfrica)], as well as
the truth about state-sanctioned violence and harm (Sierra
Leone,East Timor). As discussed more fully below,the challenge for
these various and quite di-verse TRCs has been to ensure
participationby both victims and perpetrators, which inmany cases
is not a direct encounter as in moreconventional criminal
restorative justice prac-tices, in settings where there is mostly
talk ortestimony and not real punishment or restitu-tionary
relief.
At the national or institutional level ofrestorative justice,
the goals may be quitedifferent than in more individualized acts
ofwrongdoing. The commissions are designedto heal the nation-state
or civil community byallowing many narratives of hurt and harm tobe
told and by creating new collective nar-ratives of the truth so
that a society can be-gin anew with transformative understandingsof
both its past and its future. Like the useof restorative justice in
more individual set-tings, the efficacy and effectiveness of
theseprocesses have been debated and questioned(see below), but
these processes are clearlyevolving and offer great promise of
adapt-ing to different political, cultural, and his-torical
contexts and may ultimately transformour conceptions of
international justice. As ismore fully explored below, as scholars
and po-litical activists assess and debate their effec-tiveness,
there are particularly rich encountersbetween the international
human rights com-munity (with rights-based conceptions of jus-tice)
and the international conflict resolutionand peacekeeping
communities (with morerealist and pragmatic conceptions of
post-conflict regimes). Differences of theoretical
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paradigms, of assumptions about human be-havior, of
philosophies, and of commitments(such as to the rule of law or to
pragmatic,informal actions of nongovernmental organi-zations) and
practices may themselves haveto be mediated to make these new forms
ofjustice meet their aspirational goals, eitheralongside
conventional legal structures (withconventional international or
national pros-ecutions of the most serious atrocities) oras
substitutes for them (in less serious casesin which redemption,
reassimilation, or evenco-optation of past aggressors may be
possi-ble or desirable for security and continuityof regimes). The
newer forms of truth andreconciliation practices combine tiered
sys-tems of prosecution (for most serious crimes)and confession and
restorative justice for lessserious offenses (Honeyman 2004,
Hayner2001). Whether these alternative institutionsare public or
private is also a crucial issue.The South African TRC proceedings
weretelevised to the whole nation, but virtually allof the Latin
American commission proceed-ings (Argentina, Chile, and Guatemala)
wereprivately conducted (even with publication offormal
reports).
CRITIQUES OF RESTORATIVEJUSTICE
Most proponents of restorative justice appealin visionary,
optimistic, and aspirational termsfor a new human sensibility to
emerge fromthe transformative effects of dialogue, con-versation,
empowerment, and understanding,from individual juvenile offender
advocatesto architects of the most complex truth andreconciliation
governmental processes or for-mal state institutions, such as
problem-solvingcourts. The claims made on behalf of restora-tive
justice are simultaneously instrumental,incremental, and grand:
� Restorative justice enhances under-standing of the root causes
of crime andconflict;
� Outcomes reached in restorative justiceare more likely to be
complied with;
� Restorative justice processes reduce re-cidivism rates;
� Restorative justice offers the possibil-ity of reclaiming,
repairing, and trans-forming individual wrongdoers andreintegrating
them into productiveactivity;
� Participants in restorative justice pro-cesses are more likely
to developfellow-feeling, empathy, and a senseof moral
responsibility, mutuality, andreciprocity;
� Restorative justice processes enhancecommunity building,
community normdevelopment, and democratic partic-ipation by
increasing the number ofstakeholders who are involved in
itsdeliberations;
� Restorative justice permits more real,less formal, less
stylized or legal humancommunication and interaction, pro-ducing
more authentic understanding;
� Restorative justice processes are richerat expressing a
variety of often com-peting justice values
simultaneously—acknowledgment of fault, recognition ofconsequences
that flow from wrongfulactivity (punishment, remorse),
com-pensation to victims, social learningand healing, mercy, as
well as moraljudgment—and are thus more creativeand flexible and
represent a form ofresponsive justice (Nonet & Selznick1978)
that is humanely civilized and notas brittle as formal adversarial
justicestructures;
� Processes using restorative justice val-ues are more likely to
engage individualsin voluntary commitments for under-takings to
others and self and to encour-age self-empowerment and
self-esteem;
� The underlying values of restorativejustice promote a positive
redemptionistand ameliorative view of human behav-ior, with a
positive hope that even theworst among us can be transformed
toconsider the common good and the bestfor other human beings;
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� Outcomes produced by participatoryrestorative justice
processes are moretailored to the specific needs of indi-viduals,
groups, communities, and na-tions; they can be bargained for
withmore nuance, detail, and accountabil-ity than those produced by
formal andoverbooked systems of justice;
� Restorative justice is potentially lesscostly and more
efficient both in mone-tary and deterrent effects than
conven-tional penological practices;
� If the principles of restorative justicewere to gain
ascendancy, the criminaljustice system would be radically
trans-formed (less punitive and more respon-sive), if not
eliminated.
Since the practices of restorative justice inall of the forms
described above have been de-veloping and attempting to express
these aspi-rational values, a core of critiques of restora-tive
justice has emerged at different levels andfrom the perspectives of
different disciplines.There are empirical claims that
restorativejustice does not meet its own claims (see nextsection)
(Braithwaite 2002, Daly 2002, VanNess 1993); philosophical and
sociologicalclaims that humans continue to carry base
re-tributivist and vengeful motivations that areimpervious to
so-called transformative pro-cesses (Acorn 2004); legalistic claims
thatrestorative justice unfairly coerces and manip-ulates its
participants to forgive (victims) orconfess and accept harsher
terms (offenders)than legal rights and rules would permit informal
justice institutions and that restorativejustice does not deliver
equitable or equal jus-tice (Dolinko 2003, Delgado 2000);
anthro-pological critiques that concepts in restora-tive justice
ideology are culturally specific andnot universal (Avruch &
Vejarano 2001) andthat notions of community are social con-structs
and can be manipulated for bad ends(Weisberg 2003); and political
claims thatrestorative justice processes will be manipu-lated,
corrupted, co-opted, and deformed toproduce oppression, more state
surveillance
and discipline, and more inappropriate socialcontrol (Abel 1982,
Levrant et al. 1999).
In addition to these critiques, specificcritics have suggested
that, like civil ADR,restorative justice privatizes that which
shouldbe public (Luban 1995), prevents precedentsand rule
generation for community normdevelopment, and hides its outcomes
frommeasurement and evaluation. The locationof restorative justice
(whether in or along-side courts or as private conferencing
sessions)problematizes the relation of the state to lawenforcement
and shared governance with pri-vate entities (a larger issue that
clearly impli-cates more than restorative reforms in this ageof
public-private partnerships).
Criminologists worry that restorative jus-tice will lead to
subjective, nonobjective, andnonrational assessments of harm and
needand will produce great inequities for bothvictims and
offenders. What is extremelypainful to one victim may be tolerable
for an-other. Whether victims receive recompenseand restitution
will depend not on the qual-ity of the offense, but on the
resources ofthe offender. Philosophers such as Nussbaum(2004) decry
the potential degradation andloss of humanity that can come from
com-pelled shaming. Acorn (2004) argues similarlyabout the effects
of coerced compassion onthe part of victims, who have been
seriouslyharmed and are made to feel ashamed abouttheir desires for
punishment, vengeance, andretribution. In these claims, we see that
thevery promise of restorative justice to be moreauthentic has the
potential to be less authenticthan other forms of structured and
rule-baseddiscourse because of its compelled or expectednarratives.
When the harm is not only per-sonal but social, how can the
offender satisfythe needs of the community for rectificationand
safety with a simple (even if authentic)apology (Robinson 2003,
2006)?
Within the restorative justice movementitself, practitioners and
theorists have theirown worries (Braithwaite 2002, pp. 137–68) that
offenders may be stigmatized in adifferent, but harmful, way than
they are
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stigmatized in formal court proceedings; thatvictims can feel
revictimized in their retellingof pain or injury suffered
[comparable to therape victim’s dilemmas in the formal
adjudi-cation system (Matoesian 1993)]; that oppres-sive or false
communities in societies that areactually heterogeneous will
attempt to im-pose their own values on participants in theprocess;
or that even with community homo-geneity more conservative or
majoritarian val-ues may gain ascendancy and dampen indi-vidual
freedoms (Weisberg 2003). Althoughconceived as a part of a
progressive move-ment for social justice, the appeal of
restora-tive justice to the Christian FundamentalistRight in the
United States has caused some tobe concerned about whether
restorative pro-cesses will be used for antiprogressive
ends(imposing conservative, antiliberationist, nar-rowly religious,
or monocultural values). Or,with less conservative ends,
governments maysimply co-opt such processes to achieve theirends
(diversionary programs, docket clearing,more social control and
surveillance devolvedto nonstate actors) and thus routinize andmake
less authentic the human encounter andengagement contemplated by
restorative jus-tice proponents. Like civil forms of ADR insuch
processes as consensus building, collab-orative governance,
negotiated rulemaking,and multi-agency mediation, some worry
thatthe separation of powers and accountability inconstitutional
governments will be obscuredand made difficult to monitor. Lawyers,
inparticular, worry about how informal pro-cesses, while serving
some ends of responsiveand flexible justice, can erode other
importantvalues—individual civil rights, standards forconvictions,
rights of appeals, written opin-ions, and accountability of
decision makers.
Feminists have been strong critics (andproponents in other
contexts) of restorativejustice models that decriminalize
violenceagainst woman and seek lesser punishmentsand no
incarceration for wrongful acts thathave only recently achieved
some form of legalrecognition (Daly 2005, Stubbs 1995).
Prac-titioners worry that processes that are struc-
tured around dialogue and narrative (Young2000) may privilege
the verbal and well ed-ucated and disempower those without
educa-tion or other resources. And others worry thatrestitution
commodifies crime and wrongdo-ing by allowing offenders to buy
their wayout if they can (Kahan 2006). Imprisonment,at least in
theory, is a great equalizer inincapacitation.
Finally, restorative justice requires well-intentioned,
nonmanipulative participantsand sufficient resources to allow
authentic en-counters and dialogue to occur. Thus, even forsome
proponents of restorative justice, thereis a fear that restorative
justice can only workwith large commitments of time, resources,and
skilled individuals and must necessarilybe deformed and watered
down to ritualizedimperfections if it is assimilated,
aggregated,and institutionalized without sufficient careand
resources.
EMPIRICAL ASSESSMENTS OFRESTORATIVE JUSTICE: DOESIT WORK?
There are many challenges in assessing theclaims of both
proponents and critics ofrestorative justice at the conceptual
andmethodological levels. Most importantly, as inassessments of all
comparative forms of jus-tice or legal case processing, including
civildispute resolution, it is virtually impossibleto conduct
controlled experiments or treat-ments of submitting the same matter
to dif-ferent treatment conditions for comparison.In both criminal
justice matters and largerconflicts, ordinarily there is only one
treat-ment of the matter or, if several treatmentsare used, the
treatments are used for differ-ent purposes or at different times
[such asuse of VOM for remedy but not guilt assess-ment, triaging,
or grading of crimes againsthumanity that are assigned to formal
pros-ecution or more restorative processes, suchas gacaca in Rwanda
(Bolocan 2004)]. So, al-though a few controlled studies are
emergingin which there is random assignment of cases
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to either restorative justice or more conven-tional models of
process, the bulk of empir-ical evaluations of restorative justice
effortsfocus on aggregate comparison data, with at-tempts at
matched cases or data sets of differ-ent forms of treatment or
intervention. Exam-ples include efforts to assess (a)
comparativecompliance rates with agreements or judg-ments; (b)
satisfaction rates for victims, of-fenders, professionals, and the
larger com-munity with different processes and
outcomepossibilities; (c) reoffender or recidivism rates;(d )
reduction of violence generally [commu-nity measures beyond those
of participantsin the process (Zimring 2006)]; and (e) inthe case
of TRCs, whether postconflict soci-eties build efficacious systems
of governancewith legitimacy, compared with societies thathave not
used such processes (Stromseth et al.2006).
The second challenge is to define and op-erationalize the
meaning of variables assessed.As several new meta-analyses have
shown,over the course of many years of study, suchvariables as
reoffense rates vary enormouslyfrom study to study, thereby greatly
con-founding analysis. In some studies reoffense ismeasured in
short time intervals (six months);in others longer (up to two years
or more).Some studies cut finely and look at degreesof severity of
offense (simple and single prop-erty offenses, simple to repeated
assaults) andothers look only at whether there is a subse-quent
conviction or, quite differently, simplyanother arrest. Because it
is easiest to mea-sure, with exit interviews or follow-up meth-ods,
the most common factor studied is acrude measure of satisfaction
with the pro-cess (and/or outcome), tracking the now richand robust
findings of procedural justice at-titudes (MacCoun 2005, Thibault
& Walker1975). These findings demonstrate that theprocesses
generally favored are informal pro-cesses that give participants
voice and thathave some cathartic effect in response to thedispute
or act of wrongdoing. And these infor-mal processes are favored
even when partieslose (or do not gain much) in outcomes. Here
again, the comparisons are analogical, ratherthan
experimental.
Aggregate studies compare satisfactionrates of those who have
used the conventionaljustice system with those who have
attendedsome alternative process (Kakalik et al. 1996,Lind et al.
1989), but it is virtually impossi-ble for the same participant to
compare treat-ment in the two types of processes in the samecase,
leaving open the possibilities that casefactors and other variables
may account forprocess satisfaction. For example, in one of themost
rigorously designed tests of comparativecivil case processing,
LaFree & Rack (1996)found that race and ethnic matching of
third-party neutrals (whether mediators or judges)with participants
(Anglo-white, Hispanic, orAfrican American) accounted for some of
thecomparative satisfaction rates of disputants(and also explained
some of the variance inoutcomes in the two processes (mediation
oradjudication).
At the level of assessing the more ambitioustruth and
reconciliation or societal restorativeprocesses, measurements are
even more com-plex and difficult to assess. Should individualsbe
polled about satisfaction (those who haveparticipated and those who
have not)? Is itpossible, as some political scientists have
at-tempted, to compare rates of internal con-flict and civil wars
over time and betweennation-states and also to measure
aggregatelevels of international conflict (Stein 1993)when
different conflict resolution processesare used? As the growing
literature on TRCsand postconflict interventions indicates,
thereare great variations in the purposes, struc-tures (direct or
indirect encounters and tes-timonies, amnesties or punishment,
types ofmatters subject to informal processes, public-ity and
accessibility of such processes, loca-tion, type of third-party
interventions or facil-itations), and functioning of these
innovationsin justice. Comparisons across widely differ-ent
political, social, and cultural contexts maybe quite difficult.
Despite these methodological problems,the emerging data often
provide not only
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confirming or disconfirming informationabout the claims and
hypotheses aboutrestorative processes, but also, in some
cases,information about new and perhaps unin-tended effects of such
processes, such asGibson’s (2004a,b) findings on the develop-ment
of human rights consciousness amongthose who viewed (on national
television) theSouth African Truth and Reconciliation pro-cess,
even if they did not participate directly(see below).
Here I present an overview of what stud-ies to date have
revealed about how restora-tive justice is working or is perceived
to beworking, in a variety of locations, with greatvariations in
purpose, structure, and use.
The greatest claims for restorative jus-tice, in its most
conventional forms in crimi-nal justice—that it creates greater
compliancewith agreements or judgments, reduces im-prisonment (and
therefore costs to the sys-tem), provides greater satisfaction for
bothvictims and offenders, and reduces recidivismrates—have all
been substantiated in a vari-ety of different studies on at least
three con-tinents (North America, Australia and NewZealand, and
Europe), despite methodolog-ical difficulties in almost all
settings. Com-parisons between systems (restorative
andconventional-retributivist) are difficult whenthe participants
do not engage in both types[and satisfaction rates with informal
processestend to be high, whether in civil cases (medi-ation,
arbitration, or other forms of ADR) orcriminal cases (see Lind et
al. 1989, Kakaliket al. 1996)].
Some studies focus on participation rates,noting that even when
referred by courts (inless than voluntary settings) many
offenderschoose to admit guilt and attend mediationwith their
victims. (In virtually all court pro-grams, defendants who do not
admit guilt andinstead seek trial are not referred to VOM.Thus, how
voluntary a guilt admission is re-mains a worrisome issue.)
Participation ratesfor victims range from 40% to 60% of
thosereferred. Interestingly, participation rates forvictims go up
when more time elapses be-
tween referral and participation in cases in-volving personal
injury (assault), but decreasewhen more time elapses in cases
involvingproperty (theft, vandalism) (Umbreit et al.2005). There is
a curvilinear relationship forparticipation rates of victims and
the serious-ness of the offense, with participation rateslowest for
less serious offenses (“I can’t bebothered”) and for the most
serious (fear ofthe offender or reliving the trauma in seri-ous
bodily harm cases) (Coates & Gehm 1985,Wyrick & Costanzo
1999).
Many studies have demonstrated high sat-isfaction rates on the
part of both offend-ers and victims who feel they were
treatedbetter in restorative justice processes than inthe criminal
justice system (Poulson 2003,reviewing 7 selected studies out of
100 onpsychological outcomes of restorative justice),often with
satisfaction rates greater by a fac-tor of 3 to 4. Studies in such
diverse loca-tions as Bethlehem, Pennsylvania (McCold &Wachtel
1998); Brooklyn, New York (Daviset al. 1980); Canberra, Australia
(Strang et al.1999, Strang 2001); Israel (Umbreit &
Ritter2006); a multi-state U.S. study (Umbreit &Coates 1992,
Umbreit et al. 2001); Canada(Umbreit 1995); and the United
Kingdom(Umbreit & Roberts 1996, Marshall & Merry1990);
along with meta-analysis of multiplestudies (Latimer et al. 2001),
with diverse setsof victims (female, young, old, low and
middlesocioeconomic classes) and offenders (most,but not all of the
studies focus on juvenileoffenders, with increasing attention to
adultoffender programs as restorative justice prac-tices expand)
all find that victims have satis-faction rates higher than what
they had ex-pected to gain from a process following injuryand harm.
Offenders are much more likely tofeel they have been treated
fairly. Offendersatisfaction rates with restorative justice
com-pared with court processes tend to be higherthan victims’
satisfaction (typically because,in minor offenses, participation in
restora-tive justice proceedings may eliminate otherforms of
punishment, including incarceration,although in some programs
offenders might
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have had their cases totally dismissed in a moreconventional
setting).
Both victims and offenders report satis-faction with their
ability to narrate and ex-plain more fully both the harm and
injurythat wrongdoing caused in particular circum-stances and the
reasons for committing badacts. On the victim side, there is a
slightlylower perception that their opinions weretaken more
seriously in restorative justice thanin court, compared with
offenders (Poulson2003). And, in an important and rigorous
anal-ysis in Australia, victims whose restorative jus-tice
proceedings were badly handled or didnot take place were the least
satisfied [lesssatisfied than court users and participants inmore
successful restorative justice proceed-ings (Strang 2001)]. Thus,
the quality of therestorative justice process may be
especiallyimportant when there are high expectationsabout what it
can accomplish. Participantsgenerally expressed satisfaction with
the fair-ness of mediators or third-party facilitatorsover judges
[by a factor of 2.3 for victims and6.0 for offenders (Poulson
2003)].
Victims have been satisfied with whatthey perceive to be greater
accountability inrestorative justice (Poulson 2003), and,
notsurprisingly, victims were more likely to for-give the offender
in restorative justice pro-cesses than in court proceedings,
probablybecause offenders are much more likely toapologize [6.9
times more likely according toPoulson’s (2003) meta-analysis] than
in courtproceedings.
Since the beginning of the 1990s, re-searchers have attempted to
track compli-ance rates with reparation and compensa-tion
agreements. Although many argue thatrestorative justice does not
require an agree-ment but rather seeks understanding and dia-logue,
studies document that agreements forsome sort of restitution are
highly likely tooccur [more than 90% in VOM programsin which there
is face-to-face contact, withsome form of restitutionary agreement
beingreached in the vast majority of cases (Umbreitet al. 2005,
Umbreit 2001, Umbreit & Coates
1992)]. Compliance rates range from a high of100% to usually no
lower than about 75%, incomparison with control groups with
diver-sionary or other sentences from courts (see,e.g., Haley &
Neugebauer 1992, Marshall1998, Kuhn 1987, McCold & Wachtel
1998).Latimer et al.’s (2001) meta-analysis of eightstudies with a
control group found that resti-tutionary compliance was 33% higher
inrestorative justice cases than in the controlcases (in court).
Other studies in the UnitedStates have found comparisons of
complianceof 81% completion rates in restorative justicewith 58%
completion in court cases (Umbreitet al. 2005). And in a randomly
assigned treat-ment evaluation of six different programs,89%
completion was found in restorative jus-tice, compared with 75%
completion in courts(Ervin & Schneider 1990).
Satisfaction rates for victims are often at-tributed to the
nonmaterial or human as-pects of the process—the ability to
explainin regular language (not court-stylized ad-missible
evidence) what the harm caused hasmeant for the individual, to
learn facts relat-ing to the wrongdoing, and to learn a littlebit
about why an offender does bad things.In his meta-analysis of seven
studies, Poulson(2003) found that victims who participatedin
restorative justice proceedings were halfas likely to feel upset
about the crime after-wards than were victims who went to court.In
the places where restorative justice is usedin very serious crimes,
such as murder or se-rious felonies, the effects of restorative
jus-tice are often only in this nonmaterial realm—accountability
and apology by the wrongdoerand some relief in the form of closure
orforgiveness for the survivors (Umbreit et al.2003), because in
very serious cases (murder,rape, and serious assault) restorative
justice isancillary or supplemental, not substitutionary,to formal
adjudication. In its most spiritualforms, restorative justice is
experienced as acathartic event, both for victims and offend-ers.
As one participant described it, “Today Ihave observed and taken
part in justice admin-istered with love” (Braithwaite 2002, p.
53).
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Indeed, some have asked whether an apologyfrom a murderer might
provide greater psy-chological closure (at least for some) than
thedeath penalty (Hirsch 2006).
Perhaps the greatest empirical effort hasbeen expended on
examining what concreteand measurable effects restorative justice
hashad on recidivism rates. In a meta-analysisof 19 studies with
9307 offenders ( juveniles),Nugent et al. (2003) found that VOM
par-ticipants were 33% less likely to reoffendwithin six months
than those who had notparticipated in VOM. This rigorous
meta-analysis recognizes important categorical andcoding
issues—different studies define reof-fense differently (arrest,
conviction, any newcontact with the criminal justice system),
andthe time period in which an offender is fol-lowed can have
important effects on the find-ings. Generally speaking, over longer
periodsof time (as the offender moves further andfurther away from
the VOM event), recidi-vism rates move closer together for
restora-tive and conventional criminal justice partic-ipants
(Nugent et al. 2003). These data mustbe compared with the general
rates of declinein juvenile delinquency with the ordinary
lifecourse (which some estimate at as much as50% who no longer
offend when they growolder; see McCord 2000). Victimless
crimes(like some forms of drunk-driving and somedrug offenses) may
be less subject to restora-tive justice–court differences as the
encounterwith a victim is minimal (with a state officialstanding in
for the harm the crime caused)(Strang 2001). And comparisons of
recidivismrates are subject to great selection biases, withthe more
minor crimes or those committed byjuveniles more likely to be
assigned to restora-tive, not conventional adjudicative,
treatmentconditions (Braithwaite 2002, Bazemore &Walgrave 1999,
Bradshaw et al. 2006, Pfeiffer1998). Finally, empirical studies,
with rare ex-ception, tend to homogenize offenders and donot
capture the offender who commits crime“for the thrill of it” and
may not be deterredby either restorative justice or
conventionalcriminal processes (Katz 1990).
John Braithwaite and other researchersstudying regulatory
enforcement have doc-umented that compliance with regulationsis
often higher (and rates of repeated non-compliance lower) when
regulated industriesand corporate actors are actively engagedin
discussions of compliance and allowed totalk with their regulators
(Braithwaite 2002,Hawkins 1984). Inspections of mine safety (inthe
United States and the United Kingdom)that involved exit conferences
with dialoguesand plans for reparation were much morelikely to lead
to compliance with rules andincreased safety standards. Braithwaite
foundthat persuasion worked much more effec-tively in the corporate
compliance contextthan did punitive measures. Similar resultshave
been noted in nursing home regulation,special education (Handler
1986), and nuclearpower regulation in a field now internation-ally
called “communitarian regulation” (Rees1988, 1994) [not unlike
American reg-neg(negotiated rulemaking); see Harter 1982].
Uses of restorative justice in controversialarenas such as
domestic abuse have met withcriticism by feminists and some child
advo-cates, but in fact many studies do report somesuccess with
nonrecidivism in some formsof family conferencing and other forms
ofrestorative justice (Burford & Pennell 1998).There has been
less rigorous demonstra-tion of successful uses of school peer
medi-ation or antibullying to reduce school vio-lence (Braithwaite
2002, pp. 59–61), althoughsuch efforts continue, especially in the
wakeof recent violent school shootings. Most ofthe United States
was treated to its first pub-lic display of restorative justice
when theAmish families who lost children in a schoolshooting in
Pennsylvania forgave the wrong-doer, prayed with his widow, and
createdan image of freedom as “the freedom fromvengeance, which is
forgiveness” (Fleming2006, Arendt 1998). Although not a
restora-tive justice process with the actual offender(those who
prayed together were all familiesof either the murderer or his
victims and were,thus, all survivors), this demonstration of
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religious forgiveness was quite contrary to theimages presented
of more vengeful parents inother school shootings (such as
Columbine,Colorado).
With the expansion of restorative justice tospecialized
reparative courts, like drug courts,vice courts, and unified family
courts, re-searchers have just begun to explore rigor-ously whether
new treatment models with lesspunishment reduce recidivism,
increase em-ployment, or have other ameliorative effectsfor both
individuals and the larger commu-nity. Dorf & Sabel (2000), for
example, havestudied drug courts’ effectiveness and haveargued that
these experiments in local so-cial control should be allowed to
flourish andvary as evaluators seek to discover what works(such as
ongoing relations with social work-ers and accountability to judges
and othercourt personnel) in which contexts [big citieswith larger
budgets and more resources orsmaller communities with more
gemeinshaftor surveillance (depending on whether onehas a Weberian
or Foucaldian perspective)].Courts that treat defendants as members
ofa community have been documented as be-ing perceived to be more
fair than conven-tional courts (Frazer 2006), and perceptionsof
fairness are linked to increased compliance(Tyler & Huo 2002).
These efforts to evalu-ate problem-solving courts are
controversial,especially among those who see restorativejustice
institutions as formally abrogating le-gal rights in the name of
remedial creativity(Thompson 2002). With restorative
justice’sanalogue in the debate about use of bargain-ing processes
for negotiated rulemaking in ad-ministrative regulation and civil
law (Harter1982, Coglianese 1997, Freeman 1997), crit-ics fear that
softer processes will underminelegal formality, separation of
powers, formallegal accountability, and enforcement, as wellas
ordered norm and rule creation.
Evaluation of restorative justice’s rehabil-itative potential
recapitulates the historicaldialectic of all judicial reform.
Nineteenth-century reformers created juvenile courts tobe a more
responsive, less punitive, pater-
nalistic institution for wayward youths. Civillibertarian
litigation in the 1960s produced,among other cases, In re Gault
(1967), whichinfused juvenile criminal proceedings with le-gal
rights, such as the right to legal counseland, some would argue,
more punitive out-comes. Restorative justice, like its analoguesin
civil justice, is a reaction to an over-rigidified, bureaucratized,
punitive, and inef-fective (at crime reduction) criminal law
sys-tem, which now has its own critics for drawingdifferent lines
around individual and collec-tive, formal and informal, material
and spir-itual, rights-based and interest-based values.Where
restorative processes are supplemen-tal, not substitutional, of the
conventional le-gal process, they are more likely to be ac-cepted.
Yet some would prefer other reformsof the criminal justice system
to remedy itsproblems. Some argue for less plea bargain-ing and
faster, more responsive trials to al-low defendants and victims to
come to formaljustice faster. Others argue for less draco-nian
sentencing, both in length of time andseverity, to return to
earlier reform effortsat more rehabilitative notions of criminal
re-mediation. Still others argue for decriminal-ization of certain
offenses (minor propertycrimes, drug offenses) or more localization
ofcriminal law enforcement, whereas more con-servative forces argue
for harsher sentencesand criminalization of more offenses. In
thepolitical standoffs surrounding criminal jus-tice policy,
restorative justice appears to beone reform that appeals to both
sides of thepolitical spectrum, if for different reasons.
Beyond the conventional criminal jus-tice system, efforts to
expand restorative andreparative processes to larger acts of
wrong-doing (Elster 2006) [state violence, genocide,civil wars,
ethnic conflicts, international hu-man rights violations, and past
wrongs suchas slavery and internment (Brophy 2006)]have also pitted
restorative reformers againstmore formal rights-based reformers.
Theactivity of nongovernmental organizations,the United Nations,
and other organizationsin enunciating and enforcing human
rights
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standards has created whole new institutionsof formal
prosecution at the internationallevel [the International Criminal
Tribunal forthe Former Yugoslavia (Hagan 2003) andfor Rwanda and
the International CriminalCourt, among others]. Proponents of
enforce-ment of international human rights argue forstrict criminal
prosecution, whereas othersargue that some forms of reparative
justice[whether individualized (Godobo-Madikizela2003) or more
collective (Keller 2007)] aremore likely to lead to healed and
function-ing postconflict societies, replicating
timelessphilosophical debates about the relative ef-ficacy of
principle, adjudication, and rightsversus interest- or needs-based
bargaining(Elster 1995; Menkel-Meadow 1984, 2003).The rapid
execution of Saddam Hussein afterprosecution in a state (not
international) tri-bunal, cutting off further testimony,
informa-tion, and maybe public remorse, has reigniteddebates about
how justice is delivered in suchcontexts. Whereas some tribunals
have beeninternational and other TRCs are nation-statebased, other
efforts have experimented withmore mixed combinations of
internationaland state-based institutions (Sierra Leone,East
Timor). Meanwhile, complex legal issuesof whether international
bodies, such as theInternational Criminal Court, should bend
tonational policies of amnesty or forgiveness re-main unresolved
(Blumenson 2006).
Attempts to study the aftereffects of TRCsand more local,
indigenous restorative pro-cesses, such as gacaca in Rwanda, now
abound,with heated debate and controversy (Borer2006, Henkin 2002,
Rotberg & Thompson2000, Kritz 1995, Avruch & Vejarano
2001,Hayner 2001) as many nations have filed for-mal truth reports
with a variety of repara-tive conditions (Guatemala, Argentina,
Chile,El Salvador, South Africa, Sierra Leone, EastTimor).
Questions of whether internationalor local principles of justice
should govern arenow being raised as well (for their effects
onpostconflict legitimacy of the legal processesused and the
creation of new postconflict na-tional identities, see Ivković
& Hagan 2006).
International tribunals are often viewed asaligned with one side
in ethnic conflict, assome have argued has occurred in the
In-ternational Criminal Tribunal for the formerYugoslavia, thus
prolonging hostility and pro-moting continuing desires for
vengeance.
Some decry the lack of participation byimportant perpetrators,
such as Dyzanhaus’s(2003) exposure of the absence in the
SouthAfrican TRC of apartheid-era judges, whofailed even to narrate
and acknowledge theircrimes against humanity in upholding the
le-gality of the apartheid regime. Others moreforcefully critique
the absence of any real pun-ishment, accountability, or reparative
com-pensation (Andrews & Ellmann 2002, Abel1995) for horrific
wrongs, not to mention thefailure to confront more long-lasting
harms—not only discrimination, wrongful murdersand incarceration,
and removal of civil lib-erties, but also continuing gross
economicinjustice, with little effort to ameliorate,even with
well-written and democratically ap-proved constitutions, the
continuing condi-tions of inequality, poverty, and increasingcrime
among the have-nots. Some fear thathaving written a report and
formally repentedas a government, instead of “nunca mas!”(never
again), Argentina and Chile, amongothers, could just as easily fall
again intothe clutches of brutal dictators (especially asPinochet
successfully avoided full account-ability for his crimes). Whether
postconflictor postdictatorship societies can put asidetheir past
hostilities and sharp divisions andseek more moderate third ways or
alterna-tive strategies without fully coming to termswith the past
remains to be seen. Democrat-ically elected regimes are certainly
fragile inthe former Soviet Union and parts of EasternEurope,
whereas Latin America appears, as ofthis writing, to have turned a
democratic cor-ner, even while left and right cleavages
remainstrong in many countries. Optimistic citizenshope that past
atrocities of military dictator-ships have inoculated civil
societies againstever again permitting them to exist, but his-tory
cautions against definitive conclusions,
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especially when economies are so volatile andinequality remains
so pervasive, if not worsethan in earlier decades. In the United
States,arguments are made for truly restorative jus-tice, not only
in the nonmaterial form ofapologies for slavery, Japanese American
in-ternment, and Native American genocide andproperty expropriation
(Bradford 2005), butfor material reparations to be paid to
descen-dants of the victims of these social and po-litical crimes
(Brophy 2006, Ogletree 2002).Indigenous groups throughout the world
havebegun to make similar claims and to file na-tional civil and
international claims and law-suits, seeking a variety of forms of
justice, in-cluding land claims, monetary compensation,and
self-determination and self-governance.
Nevertheless, as the debate between thepast and future continues
in the practices oftruth and reconciliation panels or other formsof
transitional justice and in the pages of schol-arly reports, some
rigorous empirical analy-sis has suggested that, as with the law of
un-intended consequences, other effects may begenerated by such
alternative justice systems.Gibson’s (2004a,b) recent study of
post-TRCSouth Africa demonstrates powerfully thatthose who viewed
at least some of the televisedTruth and Reconciliation proceedings
weremuch more likely to adopt a human rightsconsciousness than were
those who did notview any of the proceedings. Even in a settingwith
racially differentiated beliefs in the effi-cacy of the rule of
law, exposure to the wrong-ful acts of apartheid and their public
condem-nation increased some perceptions of the needfor political
and racial tolerance and respectfor minorities within a
majoritarian rule of lawconception. Thus, the transformative,
educa-tional effects of such processes may have ben-efits for those
outside of the victim-offenderdyad (and are why so many restorative
jus-tice projects seek to include community rep-resentation and
some form of publicity ortransparency). These processes are not
onlyfor the active participants or victims of thespecific act of
wrongdoing or harm. To theextent that formal justice systems are
about
providing public norms and accountabilityand remedying harm to
the larger commu-nity, public restorative justice processes
havebeen empirically demonstrated to provide ed-ucative,
participatory, democracy-enhancingpotential, through radically
different formatsand with potentially wider reaching effects.
THE FUTURE OF RESTORATIVEJUSTICE: CHALLENGES
ANDOPPORTUNITIES
Restorative justice is more of an idea, philos-ophy, set of
values, or sensibility than a singleconcrete and uniform set of
practices or pro-cesses. In some settings, there is direct
com-munication, confrontation, and reconciliationof victims and
offenders; in others, there ismore indirect restorative justice
(Tickell &Akester 2004, Utah Law Review 2003, Mar-quette Law
Review 2005), using proceduressimilar to caucusing or separate
meetings,as in civil mediation, especially when directcommunication
between offenders and vic-tims might make things worse or too
painful(as in some murder, rape, and other seriouscrimes). In some
settings, restorative justiceis only for the victim and offender,
promisingsafety, confidentiality, and tailored, individu-alized,
reparative, and conciliatory outcomes.In other settings, more
public participationis crucial [by those affected by the
wrongfulconduct, family members, supporters, treat-ing or
representative professionals, the largercommunity, and, in its most
public forms suchas TRCs, the larger society (O’Hear 2004,2006)].2
What began as an idea to reduce thepunitive nature of conventional
criminal pun-ishment (especially for juvenile offenders
andvictimless crimes) and to improve the out-comes of criminal
justice has developed into
2Restorative justice processes have been demonstrated
indocumentary films, focused on the actual operation of a va-riety
of processes, or actually televised for an entire society,as with
the South African TRC. More recently, restorativejustice was
depicted in a 2006 British film, Breaking andEntering by Anthony
Minghella, which concludes with ajuvenile criminal family
conference in London.
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a social and political movement seeking touse restorative or
reparative sensibilities toheal not only single acts of misconduct,
butcivil wars, genocides, and international, multi-ethnic,
political, and religious conflict.
Restorative justice as a social move-ment has been both
constituted by andworks in collaboration with other politi-cal
movements—peace studies, nonviolenceadvocates and practitioners,
civil ADR andconflict resolution process proponents, in-ternational
human rights activists, participa-tory and deliberative democracy
theorists andpractitioners (Menkel-Meadow 2005), andthose who
believe in responsive or dialogicregulation and justice (Pavlich
1996, 2005).What these movements have in common isa belief that
more flexible, humane, dialogic,conversational, and authentic human
engage-ment can end a cycle of misconduct, pun-ishment,
retribution, vengeance, and morebad acts and violence by both
individual-ized and systematized processes of turning theother
cheek, including authentic responsibil-ity taking, accountability,
and restitutionaryoutcomes leading to forgiveness, reconcilia-tion,
and reintegration. These are large, aspi-rational, almost utopian
ideas and goals, in-formed by a basic optimism about humans’ability
to engage in social learning and behav-ior modification at both
individual and largegroup levels. Efforts to operationalize
suchgrand notions at so many different levels arestill
experimental, evolving, and fragile. As so-cial scientists and
political leaders try to assesswhether notions of reconciliation
and reinte-gration can substitute for more punitive
andretributivist institutions, they will have to con-front a
variety of challenges to these processes,including:
� Whether processes that may work onsmaller scales ( juvenile
criminal offend-ers, community sentencing circles) canbe scaled up
to national and interna-tional conflict settings without
com-promising the basic ideas of restorativejustice;
� Whether restorative justice requiresshared values at the
community, nation-state, or international level to be ef-fective,
or whether something less thanunanimity or consensus can be
appealedto in seeking human reconciliation afteracts of
wrongdoing;
� Whether the informality, confidential-ity, and flexibility of
restorative jus-tice threatens important human andlegal rights
(publicity, representation,due process, anticonfessional rules,
eq-uity and proportionality in punish-ment) or whether human rights
and hu-man problem-solving processes can bereconciled;
� Whether informality, confidentiality,and flexibility in the
sanctioning ofwrongdoing compromises needs forpublic processes,
public norm genera-tion and enforcement, and transparencyand
equity;
� Whether restorative justice processesshould be supplemental or
substitution-ary to more conventional processes ofpunishment and
prosecution;
� Whether restorative justice processesthemselves privilege some
over others(the verbal, well resourced, represented,willing,
clever, or manipulative);
� Whether authentic participation inrestorative processes and
rituals is pos-sible in any mass, multi-valued, and di-versely
constituted community or soci-ety and whether participation in
moremicro, specific case situations can trans-form individuals and
societies on amacro level to engage in more delib-erative and
responsive solutions to badsituations;
� Whether the basic philosophy of sep-arating bad acts from bad
people canbe an effective notion for dealing withmodern, group, and
mass-level harmfulacts.
These challenges are many and profound.Not listed above are the
more practicalchallenges of structuring, supervising, and
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monitoring the operation and effectivenessof restorative justice
programs. As restorativejustice ideas are propelled from one
domainto another, both ideas and institutionalizedpractices are
themselves transformed to meetthe needs of particular communities.
Thereis always the danger of co-optation, bothby the larger system
and by individuals wholearn to work the system with insincere
apolo-gies, offers of restitution or reparation, orother
inauthentic performances. How insin-cere participation can and
should be discov-ered and disciplined (in a nonfact-finding
en-vironment) remains a serious conundrum forrestorative justice
advocates. Whether rules,standards, and best practices can or
should begenerated to assure quality of process or someuniformity
across or within domains remainsan important policy issue in this
field.
Yet, with all these challenges, we know thatrestorative justice
has reduced recidivism andreoffense rates in many programs (with
bothjuveniles and adults); that restorative justiceprocesses, with
more direct and responsive
communication and negotiation, can gener-ate new norms that are
more reflective ofchanged circumstances or enhanced
humanunderstanding; and that even merely observ-ing a restorative
justice process or ritual canhave social learning and
transformative ef-fects on how human beings conceive of theirrights
and responsibilities in a modern and di-verse world. As social
scientists develop rigor-ous evaluations of how these programs
workin different settings, at different levels, withdifferent
purposes and structures, and withcomparisons to relevant
conventional pro-cesses, we will learn more about how restora-tive
and reparative philosophies and practicesmay transform punitive
forms of social controlwith more optimistic ideas about human
em-powerment, understanding, problem solving,and reconciliation
after events of individualand group fissures. If, as the saying
goes, youcan get more bees with honey than with vine-gar, perhaps
we can get more social progress,peace, and justice with healing
than withpunishment.
DISCLOSURE STATEMENT
The author is not aware of any biases that might be perceived as
affecting the objectivity ofthis review.
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