National Association of Attorneys General
What is Restorative Justice?
Although its Western revival began nearly 40 years ago, many are still unfamiliar with the theory of “restorative justice.” In a nutshell, the idea is this: crime is a harm perpetrated upon a victim and a community, rather than on the state; and it is best handled by focusing on healing the victim and reintegrating the offender into functional society. Today, dozens of states and foreign nations are experimenting with different restorative justice models on varying scales.
Restorative justice programs tend to follow or build upon one of several archetypes. One of the most common is “victim-offender mediation,” in which the victim of a crime meets with his or her offender under the direction of a trained mediator in order to discuss the crime and its impact. Traditionally, these meetings would be voluntary for both parties and lead to a negotiated resolution between them. Modifications are common though. In Polk County, Iowa, for instance, any victim of a crime prosecuted by the County Attorney’s Office can request a meeting with the offender.
“Group conferencing” follows essentially the same structure as mediation, but with additional participants – family, friends, and other supporters of both parties to the offense may attend in order to offer moral support as well as voice their feelings regarding the impact of the offense and the resulting obligations. New Zealand has implemented the group conferencing approach on a large scale, turning family-based conferences into the mainstay of its juvenile justice system.1
Some communities have experimented with the “circle” model of restorative justice. A circle involves a ritualistic meeting in which the parties, their friends and family, and other members of the community sit in a circle and pass a symbolic talking piece among the participants in order to identify the harms that were done and then develop a plan for the offender to make amends.
A final type of restorative justice program is the “reparative board,” in which a panel of community members confronts an offender and develops a contract dictating the remedial measures to be taken. Vermont began integrating reparative boards into its criminal system in 1995, and today they are common throughout the state, dispensing justice (often in the form of community service obligations) in a number of mild to moderately serious crimes.
There are also initiatives at work in various jurisdictions that meet some of the goals of restorative justice without falling into one of the standard categories. For instance, the Minnesota Department of Corrections allows inmates to write letters of apology to their victims; these are then held in the prison’s central office until the victims wish to view them.
Studies into the effectiveness of restorative justice practices have found mixed results. In terms of participant satisfaction, results tend to be quite positive, with most studies reporting rates among both victims and offenders in excess of 75 percent. The effect upon recidivism is less clear. Some studies show a marked decrease in reoffending rates among those who engage in mediation or conferencing, with those who did reoffend generally committing less serious crimes than did a control group.2 Others, however, show no significant difference between recidivism after restorative justice programs compared to the traditional criminal system3 or return different results depending on the type of crime involved.
Offenders are also more likely to apologize to those they hurt in a conference than in a courtroom.4 This is significant in light of the argument by some proponents that the act of apologizing is a key component of moving past crime that traditional judicial processes neglect. In contrast to a boilerplate allocution before a judge, these proponents claim that a face-to-face apology is a type of ritual that helps the victim(s) understand that the crime was not their fault, while also helping the offender to understand the consequences of his or her actions. Analogizing to civil cases, there is evidence to suggest that victims may value genuine contrition more than financial compensation.5
Determining the best places to implement restorative justice is complicated. Similarities to traditional practices (and New Zealand’s example) suggest that restorative justice may work especially well among native cultures. Although restorative programs are most commonly applied to juvenile cases, different studies report very different levels of effectiveness upon young offenders—suggesting that juveniles may not always be the most suitable demographic. Studies have also found that violent offenders show the greatest reduction in recidivism after going through restorative programs. 6 However, most communities are more likely to adopt restorative justice initiatives for property crimes and minor offenses like shoplifting, where they are less effective.7 This could create something of a “catch-22” in which programs would not have enough success to build the political support needed to implement the types of programs that could yield significant success. It should also be noted that effective facilitators are essential in all cases.8
There are numerous concerns and criticisms of a restorative justice system. Constitutional issues are especially prevalent: programs often require an admission of guilt, implicating the right against self-incrimination; mandatory programs circumvent the right to trial by jury; and offenders are generally not provided with defense attorneys. Absent the formal power of the court, restorative programs might have trouble pointing to legal authority to enforce their demands.9 Further, restorative justice programs are unlikely to be appropriate for every case. Sexual assaults and domestic violence cases, for example, are particularly ill-suited for a system that focuses on a dialogue between equally-valued parties, raising serious concerns of victim safety, power imbalances, and a systemic regression from the recognition that such crimes are a matter of public concern.
Funding an entirely new criminal justice program may also seem a daunting prospect, though this is not an insurmountable obstacle. While the justice system is a government concern, many restorative programs are run by universities or financed in part by private entities. They may also be funded through grants by the U.S. Department of Justice or private organizations like the American Bar Association. At least one county10 created a restorative justice initiative with the help of a federal grant, then gradually took up the funding itself as the program proved itself effective.
Restorative justice is a novel approach to dealing with crime. Though appraisals of the theory’s practical value vary, there appears to be support for its usefulness and efficiency in at least some situations. Practitioners seeking a way to implement such policies might consider offering restorative justice programs as a voluntary supplement, rather than a replacement, to existing correctional structures. Offering alternative mediation or conferencing options for victims who do not wish to go through the courts, developing victim impact panels, promoting victim communication with offenders in prison, and similar programs might allow interested parties to glean the benefits of restorative justice while avoiding some of the pitfalls. If applied with care, restorative justice initiatives have the potential to improve the effectiveness of communities’ response to crime.
Editor’s note: A version of this article with additional statistics, examples and cited sources can be found here.
1 See Overview of Youth Justice Principles and Processes, The Youth Court of New Zealand, http://www.justice.govt.nz/courts/youth/about-the-youth-court/overview-of-principles-and-process (last visited Sept. 30, 2014).
2 See William R. Nugent, Mona Williams, & Mark S. Umbreit, Participation in Victim-Offender Mediation and the Prevalence and Severity of Subsequent Delinquent Behavior: A Meta-Analysis, 2003 Utah L. Rev. 137, 153 (2003).
3 See Suzanne Poynton, NSW Bureau of Crime Statistics and Research, Rates of Recidivism among offenders referred to Forum Sentencing, Crime and Justice Bulletin 172.
4 See Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85, 116 (2004).
5 See id. at 119.
6 See Lawrence P. Sherman & Heather Strang, Restorative Justice: The Evidence 22, 68–69 (2007); John Braithwaite, Evidence for Restorative Justice, 40 Vt. B.J. 18, 19 (Summer 2014); Lode Walgrave, Investigating the Potentials of Restorative Justice Practice, 36 Wash. U. J.L. & Pol'y 91, 111 (2011).
7 Burglary cases are an exception, in that they are property crimes where restorative justice is quite useful.
8 See John R. Bacon, Making Progress in Restorative Justice: A Qualitative Study 74–80 (2010), available at http://www.restorativejustice.org/articlesdb/articles/9931.
9 But See State v. Pearson, 637 N.W.2d 845 (Minn. 2002) (holding that a sentencing circle had authority to grant a stay of adjudication because the parties agreed in court that said circle would decide defendant’s sentence).
10 Prince William County, Va.; see Zvi D. Gabbay, Holding Restorative Justice Accountable, 8 Cardozo J. Conflict Resol. 85, 106 (2006).