Restorative justice
Encyclopedia
Restorative justice is an approach to justice
that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, "to repair the harm they've done—by apologizing, returning stolen money, or community service". Restorative justice involves both victim and offender and focuses on their personal needs. In addition, it provides help for the offender in order to avoid future offences. It is based on a theory of justice that considers crime and wrongdoing to be an offense against an individual or community, rather than the state. Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability.
and to restore a sense of safety for the victim. Various methods of restorative justice are practiced; examples include victim offender mediation, conferencing, healing circles, victim assistance,ex-offender assistance, restitution, and community service. Each method focuses on the needs of both the offender and the victim, and heals in different ways.
Restorative justice principles are characterized by four key values: first, the encounter of both parties. This step involves the offender, the victim, the community and any other party who was involved in the initial crime. Second, the amending process takes place. In this step, the offender(s) will take the steps necessary to help repair the harm caused. Third, reintegration begins. In this phase, restoration of both the victim and the offender takes place. In addition, this step also involves the community and others who were involved in the initial crime. Finally, the inclusion stage provides the open opportunity for both parties to participate in finding a resolution. The process of restorative justice is lengthy and must be committed to by both parties for effective results.
Restorative justice is defined as:
Restorative justice is very different from either the adversarial legal process
or that of civil litigation
. J. Braithwaite writes, "Court-annexed ADR (alternative dispute resolution
) and restorative justice could not be philosophically further apart", because the former seeks to address only legally relevant issues and to protect both parties' rights, whereas restorative justice seeks "expanding the issues beyond those that are legally relevant, especially into underlying relationships."
Similarly, citing Greif
, Liebmann wrote
Traditional criminal justice seeks answers to three questions: what laws have been broken? who did it? and what do the offender(s) deserve? Restorative justice instead asks: who has been harmed? what are their needs? whose obligations are these?
Retributive justice
began to replace such systems following the Norman invasion of Britain
in 1066 A.D. William the Conqueror
's son, Henry I
, detailed offenses against the “king’s peace.” By the end of the 11th century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state.
In social justice cases, impoverished victims such as foster children are given the opportunity to describe their future hopes and make concrete plans to transition out of state custody in a group process with their supporters. In social justice cases, restorative justice is used for problem solving.
Restorative justice can proceed in a courtroom or within a community or nonprofit organization.
A courtroom process might employ pretrial diversion, dismissing charges after restitution. In more serious cases, a prison
sentence may precede other restitution.
In the community, concerned individuals meet with all parties to assess the experience and impact of the crime. Offenders listen to victims' experiences, preferably until they are able to empathize with the experience. Then they speak to their own experience: how they decided to commit the offense. A plan is made for prevention of future occurrences, and for the offender to address the damage to the injured parties. All agree. Community members hold the offender(s) accountable for adherence to the plan.
While restorative justice typically involves an encounter between the offender and the victim, some organizations, such as the Mennonite
Central Committee Canada, emphasize a program's values over its participants. This can include programs that only serve victims (or offenders for that matter), but that have a restorative framework. Indigenous groups are using the restorative justice process to try to create more community support for victims and offenders, particularly the young people. For example, different programs are underway at Kahnawake, a Mohawk
reserve in Canada, and at the Pine Ridge Indian Reservation
of the Oglala Lakota
nation, within the United States.
, (VOM, also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue), is usually a meeting, in the presence of a trained mediator, between victim and offender. This system generally involves few participants, and often is the only option available to incarcerated offenders. VOM originated in Canada as part of an alternative court sanction in a 1974 Kitchener, Ontario
case involving two accused vandals who met face-to-face with their many victims.
(Australia
) under the 1997 Young Offenders Act, and in New Zealand
under the 1989 Children, Young Persons, and their Families Act. The New South Wales scheme has been favorably evaluated by the New South Wales Bureau of Crime Statistics and Research.
An RC is a voluntary, structured meeting between offenders, victims and both parties' family and friends, in which they address consequences and restitution. RC is explicitly victim-sensitive.
The conference facilitator arranges the meeting. In some cases, a written statement or a surrogate replaces an unwilling victim. The conference facilitator sticks to a simple script and keeps the conference focused, but intentionally does not testify. The intent is to allow subsequent conferences to succeed without a facilitator.
RC was successfully introduced in several schools in England, including St. Augustine of Canterbury (2004–2008) Taunton, Somerset. Positive results led officials to offer training to all Somerset secondary schools.
Victims meet with the board and offender, or submit a written statement which is shared with the offender and the board. Board members discuss the nature and impact of the offense with the offender. The discussion continues until they agree on a deadline and specific actions for the offender to take. Subsequently, the offender documents progress in fulfilling the agreement. After the deadline passes, the board submits a compliance report to the court or police, ending the board’s involvement.
developed by Dominic Barter inspired by Nonviolent Communication
. The approach involves a much wider circle of participants than conventional victim/offender conferencing, and begins with establishing a restorative system in the neighbourhood or school where circles will be held. As such, Barter's approach offers scope for radical social transformation. This process is being adopted in Germany, the USA, the UK, Canada and Uganda, and outside of the justice and education systems.
In Hawaii
, Huikahi Restorative Circles allow prisoners to meet with their families and friends in a group process to support their transition back into the community. Meetings specifically address the need for reconciliation with victims of their crime(s). A Modified Restorative Circle was developed and used in Hawaii for offenders whose loved ones are unable or unwilling to participate. Other prisoners sit in the Circle and help develop the transition plan.
. This approach has demonstrated the capacity to enhance the safe integration of otherwise high-risk sex offenders with their community. Canada judges some sex offenders too dangerous for any form of conditional release, "detaining" them until they serve their entire sentence. A subsequent conviction often leads to designation as a "Dangerous Offender".
Prior to 1994 many such offenders were released without any support or observation beyond police surveillance. Between 1994 and 2007, CoSA assisted with the integration of well over 120 such offenders. Research indicated that surrounding a 'core member' with 5–7 trained volunteer circle members reduced recidivism by nearly 80%. Further, recidivist offences were less invasive and less brutal than without the program. CoSA projects now exist in every Canadian province and every major urban centre. CoSA projects are also operational in several U.S. states (Iowa, California, Minnesota, Oregon, Ohio, Colorado, Vermont) as well as in several United Kingdom regions (Cornwall, Devon, Hampshire, Thames Valley, Leicestershire, North Wales, North Yorkshire, and Manchester).
The two primary uses within an institution are to manage behavior
overall and to respond to specific criminal actions and behavior. Using restorative justice as an overall BMT is significantly more effective over the long term. It can be difficult to implement, as such wide changes to the culture of an institution are usually met with resistance from both the staff and the institution population.
Predominately restorative justice is used for the victim, specifically with a kind of mediation and/or restitution from the offender. Restorative justice is based on bringing together the victim, the offender, and the community; all have equal parts in repairing the relationships destroyed by crime. Generally the offender is held accountable to the victim for the criminal action and accountable as well to the community. The underlying premise of restorative justice holds that all three are accountable to each other.
The offender must be held accountable, the offender must give back in the way prescribed by the victim to make amends. Additionally the offender must also give back to the community, as crime devalues any community. The community is accountable to the victim by assisting in enforcing any reparations agreed upon by the victim, and to the offender by helping the person avoid committing any more crime. In some cases, it may be difficult for the victim to participate in meetings directly, but the system is based on the offender being brought to face the implications of the crime.
To implement the system within an institution, considerable ground work is needed. First, the institution has to establish what the norms are - what really goes on within the institution, evaluate whether they are acceptable to the whole community, and work from there. Ideally, the institution will define and establish positive norms which each person understands. For example, Albert Elias wrote about the norms of Respect, Responsibility, Confrontation, Help, Trust and Support. He gave concrete definitions for these norms, and held the inmates in their care to these norms, establishing what was called normative behavior. It is likely better for an institution to decide its norms through a process.
The second aspect is to ensure that the rules support the norm and are consistent with it, to make the rules enforceable. When there are clear norms/rules for what is acceptable and unacceptable behavior, the community can be held accountable to live by these. This can be done numerous ways, depending on the size of the institution, the physical layout, the type, the counseling programs, and the staffing.
Here is where the separation between a response to criminal behavior within the institution and the overall behavior management tool becomes apparent.
When used as a response to criminal behavior, the sequence of events is:
•Crime takes place;
•A circle (defined below) is called, composed of the victim, offender, and people within the community; and
•The circle discusses what happened, and develops and executes some sort of reparation.
A circle is one of the most commonly used Restorative Justice practices, usually comprising the offender and the community and, if applicable, the victim. The offender must acknowledge the crime, the community discusses the implications, and, if applicable, the victim discusses the ramifications and the personal “cost”. The circle must come to agreement on an acceptable restoration. The offender has to restore the cost, or provide a kind of compensation. The circle has regular meetings to discuss the progress, address any issues, and ultimately attempt to restore justice.
When used as an overall behavior management tool, Restorative Justice embraces cognitive behavioral techniques (CBT) through counseling and therapy. It is based on a person's taking positive actions and being able to see oneself positively. By feeling good about being positive, the person is more likely to maintain the positive behavior. CBT can contribute to the success of restorative justice. Restorative justice and CBT are being used together in alternative counseling, specifically targeted at sex offenders, juvenile offenders, extremely violent offenders, drug counseling, family counseling, etc.
Many jurisdictions cap the amount which a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors
. In addition, personal service usually must be approved by the juvenile's parents.
According to the Victim Offender Mediation Association, victims are not allowed to profit from restitution (the equivalent of punitive damages
; only out-of-pocket losses
(actual damages) can be recovered. Courts can disallow unreasonable compensation arrangements.
Poor facilitator training is a common cause of poorly designed agreements.
is also a goal of RJ, secondary to the restoration of offenders. Proponents argue that it can prevent reoffending and deter other potential criminals. Critics counter that RJ does not significantly influence crime rates. Proponents aver that RJ is more effective than traditional methods, not that it leads to an absolute decrease in crime rates. The majority of the arguments on both sides, however, are theoretical, as the use of restorative practices is recent and is not widespread.
As of 2007, studies that compared recidivism rates are not definitive. While some studies claim modest, relative reductions, others find no significant difference.
(RP) concept has its roots in RJ. RP is an emerging field of practice and study devoted to building social capital and achieving social discipline through participatory learning and decision-making. RP ties together theory, research and practice in fields such as education, counseling, criminal justice
, social work
and organizational management. The unifying hypothesis of restorative practices is that human beings are happier, more cooperative and productive, and more likely to make positive behavioural changes when others do things with them (via collaboration), rather than to them (via coercion) or for them (via independent action).
In criminal justice, RP circles and conferences allow involved parties to resolve offenses collaboratively. In social work, RP family group decision-making (FGDM) and FGC support collaboration within families, e.g., to protect children. In education, student circles and groups collaborate to peacefully resolve disputes.
The criminal justice field uses the phrase "restorative justice"; social workers say "empowerment"; educators prefer "positive discipline" or "the responsive classroom"; while leadership consultants choose "horizontal management".
RP is spreading in multiple countries, in education, criminal justice, family and youth and-serving and workplace applications.
RJ has not currently succeeded when applied to drug offences, sexual assault and domestic violence. South Australia and New Zealand have attempted RJ with juvenile sexual offenders.
Indigenous regions of Canada have tentatively implemented circle sentencing to deal with domestic violence. Advocates believe that it may be applicable to these indigenous communities because it relates to traditional cultural values of restoring balance in the community. In addition, First Nations have low regard for the local (punitive) court system, in which their people are over-represented in court and in prison.
Since 2000, Kahnawake, a Kanien’kehá:ka reserve, has introduced the use of restorative justice to intervene before an arrest occurs, and to prevent one. Feeling ill-served by the adversarial Canadian system, the community is particularly interested in incorporating restorative justice to work with its younger members and help prevent future offenses. Some Native American nations have also begun to adopt Restorative Justice practices; the Oglala Sioux Tribe of the Pine Ridge Reservation is planning a tribal justice center to include a courtroom for Restorative Justice.
Other findings included:
In July 2011 The International Center for Transitional Justice published a report entitled “To Live as Other Kenyans do: A Study if the Demands of Kenyan Victims of Human Rights Violations”. The findings are based on individual and group interviews of victims of human rights abuses from Kenya’s 2007 post-election violence. It highlights the importance of a victim-centered approach to determine the most effective mode of implementation for a comprehensive reparations program. The main finding of the report is that victims demand tangible basic benefits lost as a product of violence, such as food and shelter. It also acknowledges the need for symbolic reparations, such as formal apologies. The provision of reparations will in a sense create a restoration of the way life was before violence, and also signal the moving forward of a society through institutional change.
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, "to repair the harm they've done—by apologizing, returning stolen money, or community service". Restorative justice involves both victim and offender and focuses on their personal needs. In addition, it provides help for the offender in order to avoid future offences. It is based on a theory of justice that considers crime and wrongdoing to be an offense against an individual or community, rather than the state. Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability.
Definition
According to Zehr and Mika (1998), there are three key ideas that support restorative justice. First is the understanding that the victim and the surrounding community have both been affected by the action of the offender and, in addition, restoration is necessary. Second, the offender's obligation is to make amends with both the victim and the involved community. Third, and the most important process of restorative justice, is the concept of 'healing.' This step has two parts: healing for the victim, as well as meeting the offender's personal needs. Both parties are equally important in this healing process to avoid recidivismRecidivism
Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
and to restore a sense of safety for the victim. Various methods of restorative justice are practiced; examples include victim offender mediation, conferencing, healing circles, victim assistance,ex-offender assistance, restitution, and community service. Each method focuses on the needs of both the offender and the victim, and heals in different ways.
Restorative justice principles are characterized by four key values: first, the encounter of both parties. This step involves the offender, the victim, the community and any other party who was involved in the initial crime. Second, the amending process takes place. In this step, the offender(s) will take the steps necessary to help repair the harm caused. Third, reintegration begins. In this phase, restoration of both the victim and the offender takes place. In addition, this step also involves the community and others who were involved in the initial crime. Finally, the inclusion stage provides the open opportunity for both parties to participate in finding a resolution. The process of restorative justice is lengthy and must be committed to by both parties for effective results.
Restorative justice is defined as:
Restorative justice is very different from either the adversarial legal process
Adversarial process
An adversarial process is one that supports conflicting one-sided positions held by individuals, groups or entire societies, as inputs into the conflict resolution situation, typically with rewards for prevailing in the outcome...
or that of civil litigation
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
. J. Braithwaite writes, "Court-annexed ADR (alternative dispute resolution
Alternative dispute resolution
Alternative Dispute Resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation...
) and restorative justice could not be philosophically further apart", because the former seeks to address only legally relevant issues and to protect both parties' rights, whereas restorative justice seeks "expanding the issues beyond those that are legally relevant, especially into underlying relationships."
Similarly, citing Greif
Eric Greif
Eric Greif is a lawyer and entertainment personality known first for a management career within the heavy metal musical genre in the 1980s and later within the legal profession...
, Liebmann wrote
Traditional criminal justice seeks answers to three questions: what laws have been broken? who did it? and what do the offender(s) deserve? Restorative justice instead asks: who has been harmed? what are their needs? whose obligations are these?
History
Restorative approaches to crime date back thousands of years:- In SumerSumerSumer was a civilization and historical region in southern Mesopotamia, modern Iraq during the Chalcolithic and Early Bronze Age....
, the Code of Ur-NammuCode of Ur-NammuThe Code of Ur-Nammu is the oldest known tablet containing a law code surviving today. It was written in the Sumerian language circa 2100 BC-2050 BC...
(c. 2060 BC) required restitution for violent offenses. - In BabylonBabylonBabylon was an Akkadian city-state of ancient Mesopotamia, the remains of which are found in present-day Al Hillah, Babil Province, Iraq, about 85 kilometers south of Baghdad...
, the Code of HammurabiCode of HammurabiThe Code of Hammurabi is a well-preserved Babylonian law code, dating to ca. 1780 BC . It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay...
(c. 1700 BC) prescribed restitution for property offenses.
- In IsraelIsraelThe State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, the Pentateuch specified restitution for property crimes. - In RomeRomeRome is the capital of Italy and the country's largest and most populated city and comune, with over 2.7 million residents in . The city is located in the central-western portion of the Italian Peninsula, on the Tiber River within the Lazio region of Italy.Rome's history spans two and a half...
, the Twelve TablesTwelve TablesThe Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centrepiece of the constitution of the Roman Republic and the core of the mos maiorum...
(449 BC) compelled convicted thieves to pay double the value of stolen goods. - In IrelandIrelandIreland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
, under the Brehon LawsBrehon LawsEarly Irish law refers to the statutes that governed everyday life and politics in Early Medieval Ireland. They were partially eclipsed by the Norman invasion of 1169, but underwent a resurgence in the 13th century, and survived into Early Modern Ireland in parallel with English law over the...
(first recorded in the Old Irish period) compensation was the mode of justice for most crimes. - In Germany, tribal laws promulgated by King Clovis IClovis IClovis Leuthwig was the first King of the Franks to unite all the Frankish tribes under one ruler, changing the leadership from a group of royal chieftains, to rule by kings, ensuring that the kingship was held by his heirs. He was also the first Catholic King to rule over Gaul . He was the son...
(496 AD) called for restitutive sanctions for both violent and nonviolent offenses. - In England, the Laws of Ethelbert of KentEthelbert of KentÆthelberht was King of Kent from about 580 or 590 until his death. In his Ecclesiastical History of the English People, the eighth-century monk Bede lists Aethelberht as the third king to hold imperium over other Anglo-Saxon kingdoms...
(c. 600 AD) included detailed restitution schedules. - In North America, justice in First NationsFirst NationsFirst Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
and Native AmericanIndigenous peoples of the AmericasThe indigenous peoples of the Americas are the pre-Columbian inhabitants of North and South America, their descendants and other ethnic groups who are identified with those peoples. Indigenous peoples are known in Canada as Aboriginal peoples, and in the United States as Native Americans...
communities have had aspects of restorative justice. - In New ZealandNew ZealandNew Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
/AotearoaAotearoaAotearoa is the most widely known and accepted Māori name for New Zealand. It is used by both Māori and non-Māori, and is becoming increasingly widespread in the bilingual names of national organisations, such as the National Library of New Zealand / Te Puna Mātauranga o Aotearoa.-Translation:The...
, prior to European contact, the Maori had a well-developed system that protected individuals, social stability and the integrity of the group.
Retributive justice
Retributive justice
Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society....
began to replace such systems following the Norman invasion of Britain
Norman conquest of England
The Norman conquest of England began on 28 September 1066 with the invasion of England by William, Duke of Normandy. William became known as William the Conqueror after his victory at the Battle of Hastings on 14 October 1066, defeating King Harold II of England...
in 1066 A.D. William the Conqueror
William I of England
William I , also known as William the Conqueror , was the first Norman King of England from Christmas 1066 until his death. He was also Duke of Normandy from 3 July 1035 until his death, under the name William II...
's son, Henry I
Henry I of England
Henry I was the fourth son of William I of England. He succeeded his elder brother William II as King of England in 1100 and defeated his eldest brother, Robert Curthose, to become Duke of Normandy in 1106...
, detailed offenses against the “king’s peace.” By the end of the 11th century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state.
Application
In criminal cases, victims can testify about the crime's impact upon their lives, receive answers to questions about the incident, and participate in holding the offender accountable. Offenders can tell their story of why the crime occurred and how it has affected their lives. They are given an opportunity to directly compensate the victim—to the degree possible. In criminal cases, this can include money, community service in general and/or specific to the offense, education to prevent recidivism, and/or expression of remorse.In social justice cases, impoverished victims such as foster children are given the opportunity to describe their future hopes and make concrete plans to transition out of state custody in a group process with their supporters. In social justice cases, restorative justice is used for problem solving.
Restorative justice can proceed in a courtroom or within a community or nonprofit organization.
A courtroom process might employ pretrial diversion, dismissing charges after restitution. In more serious cases, a prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
sentence may precede other restitution.
In the community, concerned individuals meet with all parties to assess the experience and impact of the crime. Offenders listen to victims' experiences, preferably until they are able to empathize with the experience. Then they speak to their own experience: how they decided to commit the offense. A plan is made for prevention of future occurrences, and for the offender to address the damage to the injured parties. All agree. Community members hold the offender(s) accountable for adherence to the plan.
While restorative justice typically involves an encounter between the offender and the victim, some organizations, such as the Mennonite
Mennonite
The Mennonites are a group of Christian Anabaptist denominations named after the Frisian Menno Simons , who, through his writings, articulated and thereby formalized the teachings of earlier Swiss founders...
Central Committee Canada, emphasize a program's values over its participants. This can include programs that only serve victims (or offenders for that matter), but that have a restorative framework. Indigenous groups are using the restorative justice process to try to create more community support for victims and offenders, particularly the young people. For example, different programs are underway at Kahnawake, a Mohawk
Mohawk nation
Mohawk are the most easterly tribe of the Iroquois confederation. They call themselves Kanien'gehaga, people of the place of the flint...
reserve in Canada, and at the Pine Ridge Indian Reservation
Pine Ridge Indian Reservation
The Pine Ridge Indian Reservation is an Oglala Sioux Native American reservation located in the U.S. state of South Dakota. Originally included within the territory of the Great Sioux Reservation, Pine Ridge was established in 1889 in the southwest corner of South Dakota on the Nebraska border...
of the Oglala Lakota
Oglala Lakota
The Oglala Lakota or Oglala Sioux are one of the seven subtribes of the Lakota people; along with the Nakota and Dakota, they make up the Great Sioux Nation. A majority of the Oglala live on the Pine Ridge Indian Reservation in South Dakota, the eighth-largest Native American reservation in the...
nation, within the United States.
Victim-offender mediation
Victim-offender mediationMediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
, (VOM, also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue), is usually a meeting, in the presence of a trained mediator, between victim and offender. This system generally involves few participants, and often is the only option available to incarcerated offenders. VOM originated in Canada as part of an alternative court sanction in a 1974 Kitchener, Ontario
Kitchener, Ontario
The City of Kitchener is a city in Southern Ontario, Canada. It was the Town of Berlin from 1854 until 1912 and the City of Berlin from 1912 until 1916. The city had a population of 204,668 in the Canada 2006 Census...
case involving two accused vandals who met face-to-face with their many victims.
Family group conferencing
Family group conferencing (FGC) has a wider circle of participants than VOM, adding people connected to the primary parties, such as family, friends and professionals. FGC is often the most appropriate system for juvenile cases, due to the important role of the family in a juvenile offender’s life. Examples can be found in New South WalesNew South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
(Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
) under the 1997 Young Offenders Act, and in New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
under the 1989 Children, Young Persons, and their Families Act. The New South Wales scheme has been favorably evaluated by the New South Wales Bureau of Crime Statistics and Research.
Restorative conferencing
Restorative conferencing (RC) also involves a wider circle of participants than VOM. Restorative conferences, which have also been called restorative justice conferences, family group conferences and community accountability conferences, originated as a response to juvenile crime.An RC is a voluntary, structured meeting between offenders, victims and both parties' family and friends, in which they address consequences and restitution. RC is explicitly victim-sensitive.
The conference facilitator arranges the meeting. In some cases, a written statement or a surrogate replaces an unwilling victim. The conference facilitator sticks to a simple script and keeps the conference focused, but intentionally does not testify. The intent is to allow subsequent conferences to succeed without a facilitator.
RC was successfully introduced in several schools in England, including St. Augustine of Canterbury (2004–2008) Taunton, Somerset. Positive results led officials to offer training to all Somerset secondary schools.
Community restorative boards
A community restorative board, also referred to as Community Justice Committees in Canada and Referral Order Panels in England & Wales, is typically composed of a small group, prepared by intensive training, who conduct public, face-to-face meetings. Judges may sentence offenders to participate; police may refer them before charging them; or they may engage outside the legal system.Victims meet with the board and offender, or submit a written statement which is shared with the offender and the board. Board members discuss the nature and impact of the offense with the offender. The discussion continues until they agree on a deadline and specific actions for the offender to take. Subsequently, the offender documents progress in fulfilling the agreement. After the deadline passes, the board submits a compliance report to the court or police, ending the board’s involvement.
Restorative Circles & Restorative Systems
In Brazil the juvenile justice system, neighbourhoods and schools have begun to use Restorative Circlesdeveloped by Dominic Barter inspired by Nonviolent Communication
Nonviolent communication
Nonviolent Communication is a communication process developed by Marshall Rosenberg beginning in the 1960s. NVC often functions as a conflict resolution process...
. The approach involves a much wider circle of participants than conventional victim/offender conferencing, and begins with establishing a restorative system in the neighbourhood or school where circles will be held. As such, Barter's approach offers scope for radical social transformation. This process is being adopted in Germany, the USA, the UK, Canada and Uganda, and outside of the justice and education systems.
In Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, Huikahi Restorative Circles allow prisoners to meet with their families and friends in a group process to support their transition back into the community. Meetings specifically address the need for reconciliation with victims of their crime(s). A Modified Restorative Circle was developed and used in Hawaii for offenders whose loved ones are unable or unwilling to participate. Other prisoners sit in the Circle and help develop the transition plan.
Circles of support and accountability
Circles of Support and Accountability (CoSA) originated as a project of the "Welcome In", a Mennonite church in Hamilton, OntarioHamilton, Ontario
Hamilton is a port city in the Canadian province of Ontario. Conceived by George Hamilton when he purchased the Durand farm shortly after the War of 1812, Hamilton has become the centre of a densely populated and industrialized region at the west end of Lake Ontario known as the Golden Horseshoe...
. This approach has demonstrated the capacity to enhance the safe integration of otherwise high-risk sex offenders with their community. Canada judges some sex offenders too dangerous for any form of conditional release, "detaining" them until they serve their entire sentence. A subsequent conviction often leads to designation as a "Dangerous Offender".
Prior to 1994 many such offenders were released without any support or observation beyond police surveillance. Between 1994 and 2007, CoSA assisted with the integration of well over 120 such offenders. Research indicated that surrounding a 'core member' with 5–7 trained volunteer circle members reduced recidivism by nearly 80%. Further, recidivist offences were less invasive and less brutal than without the program. CoSA projects now exist in every Canadian province and every major urban centre. CoSA projects are also operational in several U.S. states (Iowa, California, Minnesota, Oregon, Ohio, Colorado, Vermont) as well as in several United Kingdom regions (Cornwall, Devon, Hampshire, Thames Valley, Leicestershire, North Wales, North Yorkshire, and Manchester).
Sentencing circles
Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress.Implementing restorative justice
Brian Royce developed an approach he called "Operationalized Restorative Justice" for a contracted private prison for the state of Pennsylvania in the United States. The system was adopted and used in numerous contracted prisons around the country. The system was shown to significantly reduce recidivism and internal conflicts within the prisons.The two primary uses within an institution are to manage behavior
Behavior management
Behavior management is similar to behavior modification. It is a less intensive version of behavior therapy. In behavior modification the focus is on changing behavior, while in behavior management the focus is on maintaining order. Behavior management skills are of particular importance to...
overall and to respond to specific criminal actions and behavior. Using restorative justice as an overall BMT is significantly more effective over the long term. It can be difficult to implement, as such wide changes to the culture of an institution are usually met with resistance from both the staff and the institution population.
Predominately restorative justice is used for the victim, specifically with a kind of mediation and/or restitution from the offender. Restorative justice is based on bringing together the victim, the offender, and the community; all have equal parts in repairing the relationships destroyed by crime. Generally the offender is held accountable to the victim for the criminal action and accountable as well to the community. The underlying premise of restorative justice holds that all three are accountable to each other.
The offender must be held accountable, the offender must give back in the way prescribed by the victim to make amends. Additionally the offender must also give back to the community, as crime devalues any community. The community is accountable to the victim by assisting in enforcing any reparations agreed upon by the victim, and to the offender by helping the person avoid committing any more crime. In some cases, it may be difficult for the victim to participate in meetings directly, but the system is based on the offender being brought to face the implications of the crime.
To implement the system within an institution, considerable ground work is needed. First, the institution has to establish what the norms are - what really goes on within the institution, evaluate whether they are acceptable to the whole community, and work from there. Ideally, the institution will define and establish positive norms which each person understands. For example, Albert Elias wrote about the norms of Respect, Responsibility, Confrontation, Help, Trust and Support. He gave concrete definitions for these norms, and held the inmates in their care to these norms, establishing what was called normative behavior. It is likely better for an institution to decide its norms through a process.
The second aspect is to ensure that the rules support the norm and are consistent with it, to make the rules enforceable. When there are clear norms/rules for what is acceptable and unacceptable behavior, the community can be held accountable to live by these. This can be done numerous ways, depending on the size of the institution, the physical layout, the type, the counseling programs, and the staffing.
Here is where the separation between a response to criminal behavior within the institution and the overall behavior management tool becomes apparent.
When used as a response to criminal behavior, the sequence of events is:
•Crime takes place;
•A circle (defined below) is called, composed of the victim, offender, and people within the community; and
•The circle discusses what happened, and develops and executes some sort of reparation.
A circle is one of the most commonly used Restorative Justice practices, usually comprising the offender and the community and, if applicable, the victim. The offender must acknowledge the crime, the community discusses the implications, and, if applicable, the victim discusses the ramifications and the personal “cost”. The circle must come to agreement on an acceptable restoration. The offender has to restore the cost, or provide a kind of compensation. The circle has regular meetings to discuss the progress, address any issues, and ultimately attempt to restore justice.
When used as an overall behavior management tool, Restorative Justice embraces cognitive behavioral techniques (CBT) through counseling and therapy. It is based on a person's taking positive actions and being able to see oneself positively. By feeling good about being positive, the person is more likely to maintain the positive behavior. CBT can contribute to the success of restorative justice. Restorative justice and CBT are being used together in alternative counseling, specifically targeted at sex offenders, juvenile offenders, extremely violent offenders, drug counseling, family counseling, etc.
Limitations on restitution
Some judicial systems only recognize monetary restitution agreements. For instance, if victim and offender agree that the offender would pay $100 and mow the victim's lawn five times, the court would only recognize the $100 as restitution. Some agreements specify a larger monetary amount (e.g. $200) to be paid if the non-monetary restitution is not completed.Many jurisdictions cap the amount which a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors
Minor (law)
In law, a minor is a person under a certain age — the age of majority — which legally demarcates childhood from adulthood; the age depends upon jurisdiction and application, but is typically 18...
. In addition, personal service usually must be approved by the juvenile's parents.
According to the Victim Offender Mediation Association, victims are not allowed to profit from restitution (the equivalent of punitive damages
Punitive damages
Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit...
; only out-of-pocket losses
Out-of-pocket expenses
Out-of-pocket expenses are direct outlays of cash which may or may not be later reimbursed.In operating a vehicle, gasoline, parking fees and tolls are considered out-of-pocket expenses for the trip...
(actual damages) can be recovered. Courts can disallow unreasonable compensation arrangements.
Poor facilitator training is a common cause of poorly designed agreements.
Confidentiality
Some restorative justice systems, especially victim-offender mediation and family group conferencing, require participants to sign a confidentiality agreement. These agreements usually state that conference discussions will not be disclosed to nonparticipants. The rationale for confidentiality is that it promotes open and honest communication.Recidivism
Reduction of recidivismRecidivism
Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
is also a goal of RJ, secondary to the restoration of offenders. Proponents argue that it can prevent reoffending and deter other potential criminals. Critics counter that RJ does not significantly influence crime rates. Proponents aver that RJ is more effective than traditional methods, not that it leads to an absolute decrease in crime rates. The majority of the arguments on both sides, however, are theoretical, as the use of restorative practices is recent and is not widespread.
As of 2007, studies that compared recidivism rates are not definitive. While some studies claim modest, relative reductions, others find no significant difference.
Restorative practices
The Restorative PracticesRestorative practices
Restorative practices is a new field of study that integrates developments from a variety of disciplines and fields—including education, psychology, social work, criminology, sociology, organizational development—in order to build healthy communities, increase social capital, decrease crime and...
(RP) concept has its roots in RJ. RP is an emerging field of practice and study devoted to building social capital and achieving social discipline through participatory learning and decision-making. RP ties together theory, research and practice in fields such as education, counseling, criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
, social work
Social work
Social Work is a professional and academic discipline that seeks to improve the quality of life and wellbeing of an individual, group, or community by intervening through research, policy, community organizing, direct practice, and teaching on behalf of those afflicted with poverty or any real or...
and organizational management. The unifying hypothesis of restorative practices is that human beings are happier, more cooperative and productive, and more likely to make positive behavioural changes when others do things with them (via collaboration), rather than to them (via coercion) or for them (via independent action).
In criminal justice, RP circles and conferences allow involved parties to resolve offenses collaboratively. In social work, RP family group decision-making (FGDM) and FGC support collaboration within families, e.g., to protect children. In education, student circles and groups collaborate to peacefully resolve disputes.
The criminal justice field uses the phrase "restorative justice"; social workers say "empowerment"; educators prefer "positive discipline" or "the responsive classroom"; while leadership consultants choose "horizontal management".
RP is spreading in multiple countries, in education, criminal justice, family and youth and-serving and workplace applications.
RJ has not currently succeeded when applied to drug offences, sexual assault and domestic violence. South Australia and New Zealand have attempted RJ with juvenile sexual offenders.
Indigenous regions of Canada have tentatively implemented circle sentencing to deal with domestic violence. Advocates believe that it may be applicable to these indigenous communities because it relates to traditional cultural values of restoring balance in the community. In addition, First Nations have low regard for the local (punitive) court system, in which their people are over-represented in court and in prison.
Since 2000, Kahnawake, a Kanien’kehá:ka reserve, has introduced the use of restorative justice to intervene before an arrest occurs, and to prevent one. Feeling ill-served by the adversarial Canadian system, the community is particularly interested in incorporating restorative justice to work with its younger members and help prevent future offenses. Some Native American nations have also begun to adopt Restorative Justice practices; the Oglala Sioux Tribe of the Pine Ridge Reservation is planning a tribal justice center to include a courtroom for Restorative Justice.
Research
A 2007 meta-study of all research projects concerning restorative justice conferencing published in English between 1986 and 2005 found positive results, specifically for victims:- Greater ability to return to work, to resume normal daily activities, and to sleep
- No cases of offenders verbally or violently abusing victims
- Reduced fear of the offender (especially for violence victims); lower perceived likelihood of another offense; increased sense of security; reduced anger towards the offender; greater sympathy for the offender and the offender's supporters; greater feelings of trust in others; increased feelings of self-confidence; reduced anxiety
Other findings included:
- The only principled basis for selectively allowing, or banning, RJ is harm reduction.
- Limited public familiarity and misconceptions about RJ
- Greater availability, together with information about victims' positive views is likely to increase the proportion of victims willing to participate.
In July 2011 The International Center for Transitional Justice published a report entitled “To Live as Other Kenyans do: A Study if the Demands of Kenyan Victims of Human Rights Violations”. The findings are based on individual and group interviews of victims of human rights abuses from Kenya’s 2007 post-election violence. It highlights the importance of a victim-centered approach to determine the most effective mode of implementation for a comprehensive reparations program. The main finding of the report is that victims demand tangible basic benefits lost as a product of violence, such as food and shelter. It also acknowledges the need for symbolic reparations, such as formal apologies. The provision of reparations will in a sense create a restoration of the way life was before violence, and also signal the moving forward of a society through institutional change.
See also
- Bullying
- Conflict resolutionConflict resolutionConflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of some social conflict. Often, committed group members attempt to resolve group conflicts by actively communicating information about their conflicting motives or ideologies to the rest...
- Transformative justiceTransformative justiceTransformative justice is a general philosophical strategy for responding to conflicts. It takes the principles and practices of restorative justice beyond the criminal justice system. It applies to areas such as environmental law, corporate law, labor-management relations, consumer bankruptcy and...
- Distributive justiceDistributive justiceDistributive justice concerns what some consider to be socially just allocation of goods in a society. A society in which incidental inequalities in outcome do not arise would be considered a society guided by the principles of distributive justice...
- VictimologyVictimologyVictimology is the scientific study of victimization, including the relationships between victims and offenders, the interactions between victims and the criminal justice system — that is, the police and courts, and corrections officials — and the connections between victims and other social groups...