Restorative Justice

The formal criminal justice system seeks to arrest, prosecute, and punish perpetrators of crime; it views illegal actions as crimes against the state. This legal approach is referred to as Retributive Justice and involves detection, prosecution, punishment, incarceration, and to the extent possible, rehabilitation. Retributive Justice is state- or government-centered, offender-focused, and punishment-oriented. In contrast, there is an argument that supports the possibility that an alternative, informal model of action, Restorative Justice, might better provide the support needed for healing from crime victimization. In contrast, this "informal" Restorative Justice Model is characterized as injury-centered, victim-focused, and reparation-centered.

Restorative justice is an approach to criminal justice that focuses on the rehabilitation of offenders through the reconciliation with victims and the broader community. It is a social movement advocating that victims would be better off if they explored the healing potential of face-to-face meetings between victims and offenders to get past the understandable sorrow and bitterness that invades and engulfs their lives. A face-to-face encounter with the offender is an important step that helps the victim to heal emotionally and to rebuild a shattered life.

One of the main strengths to this model is its focus on a bilateral resolution between those who have harmed and those who have been hurt with an emphasis on the mutual benefit to not only the victim, but also the offender, and as importantly the community. One of the primary advantages of the restorative justice model is that it is inclusive rather than exclusive of those involved in the process. By mediating this bilateral resolution with a professional, everyone involved is treated with respect, and given the attention that is so desperately needed to resolve the conflict. Practitioners have defined mediation as one of a series of promising alternatives or supplements to our traditional formal criminal justice system. Social science research has persistently demonstrated that informal social control is frequently less expensive, yet it may also be more effective than legal, social control. Clear evidence indicates that formal social control, as practiced by our current criminal justice apparatus, is frequently costly and yet ineffective in accomplishing its goals. By including the victim in the process, they are empowered to influence the outcome of the joint contract for resolution. Another strength of this model is the inclusion of the community at large. By facing the victim or victims together with representatives from the community, the offender can better understand the cumulative effect they have had committing their crime and are given the opportunity to take active responsibility for their offense in person. The other strength, although subtler, is sometimes referred to as moral education but merely is the concept that the victims and community can reinforce their shared values and acceptable behaviors in person with the offender.

In our traditional retributive justice system, victim’s role in the proceedings is highly limited. Victims are often brought to the witness stand to be interrogated by not only the prosecution but also cross-examined by the defense. This system results in a process that is state-centered, offender-focused, and punishment-oriented rather than injury-centered, victim-focused, and reparation-oriented. This process can be so intimidating that some victims are not willing to participate. Besides testifying under oath on the witness stand, the closest a victim gets to the process is completing a victim impact statement which may be read by officers of the court. The primary principle goal of restorative justice is to place the victim at the center of the process so that they can be allowed to be an active participant in the mutual resolution.

The development of methods of alternative dispute resolution around the globe stimulated interest in reconciliation programs within the United States. Mediation lies at the center of a continuum bounded by conciliation and arbitration. The civil law practice of mediation has been around for decades with former judges and prominent attorneys filling the role of mediators in the civil proceedings referred to as arbitration. There are several avenues to accomplishing restorative justice. The primary approach and the one that is used most often is victim-offender mediation, which places a neutral individual facilitating the joint resolution. This is accomplished by a trained mediator facilitating a structured dialogue between everyone involved. Other approaches that are being experimented with are two types of peacemaking circles, also called sentencing circles or repair of harm circles, and family group conferencing. The former is derived from Native American tribal culture in the United States and Canada while the latter differs from the standard mediation in that it includes family members of the victims. In all forms of mediation facilitated by a professional mediator, the victim first describes the incident thereby owning responsibility in the presence of everyone involved. Next, the victim explains how the criminal actions of the offender affected them regarding distress, injuries, and losses. Such losses include the loss or damage of properties; costs for medical treatments and rehabilitation as the result of assaults and bodily injuries; costs for psychological and psychiatric therapies resulting from crime trauma; and costs for participating in the criminal investigation and resultant court trials. Wages are lost during the periods of medical and psychological treatments. During the crime investigation stages, and during the court processes, crime victims may miss work and thus continue to lose wages. Crime victims are also responsible for paying for transportation to and from police stations, prosecutorial pretrial sessions, and court hearings.

At this point, anyone else present during the mediation can add their perspective giving the offender a total picture of the harm he or she has perpetrated. The endgame to reach an agreement for restitution, in monetary payments from earnings or by performing direct personal services, to gain reconciliation and re-acceptance into the community.

The offender agrees, at the conclusion of the mediation, to a mutually beneficial resolution that allows him or her to directly participate in reparations made to the victim for actions that they have taken. This is the first step in building a broken trust between the offender and the broader community. By merely making restorative justice based on an agreement between both offenders and their victims, the process itself aids in reconciling offender’s behavior with their victims’ restitution. In the sense that the punishment is victim-centered, statistics are showing that victims are in favor of this form of punishment. It is probably too early to tell from a scientific analysis of statistical data because the number of cases is not yet sufficient to prove one way or the other.

Rather than the traditional retributive justice approach that in many cases leads to retaliatory justice and vigilantism where the offender does time, gets released, and re-offends the conventional method only further exacerbates the jail population problem with high recidivism rates that cost the community millions of dollars. Communities can no longer afford to arrest and incarcerate themselves out of the crime problem. The restorative justice model offers a paradigm shift to a more appropriate approach to nonviolent crime.

There are certainly criminals that are not well suited for this approach to dealing with their crimes. For most street crimes, murder, forcible rape, armed robbery, hate crimes, and aggravated assault, I do not believe restorative justice is appropriate. But where it makes sense, it should be implemented. I think that nonviolent crimes that involve an offender and the victim or victims such as petit larcenies from individuals and businesses, burglaries from the vehicle, robberies from an unoccupied home or apartment, burglaries of a store, and several white-collar crimes including embezzlement and identity theft are prime candidates for this form of justice.