Restorative Justice - When Crime Hurts, Justice Must Heal
Out with the old - in with the new
In our society, justice often means revenge on or punishment of the offender. This piece will question the wisdom of that approach and explore a new alternative.
It is becoming clearer and clearer by the day that justice as we now know it does not meet the needs of neither victims, offenders nor community.
Fortunately, some very smart and compassionate people have been working on some new ways to better meet all of our needs. Restorative justice is very much a concept in development. Sometimes manifestations have gone off the track, but that's OK. That's how we learn what works and what doesn't work.
In the following we're going to take a look at what it is, what it isn't and how we can begin to benefit from this important work.
About the Graphic
Three circles often represent the three parties to crime, the victim, the offender and the community.
Like most others, I've made them different colors to represent that they are different individuals. Unlike most others, I've made them fuzzy, with a texture and without a distinct border. I did this to represent that all of them come from different backgrounds, have different values, their worlds may not be narrowly defined and they have different interests. The center is where all that diversity comes together.
The Man Who Started It All
Howard J. Zehr is Professor of Restorative Justice at Eastern Mennonite University's Center for Justice and Peacebuilding in Harrisonburg, Virginia. (Wikipedia)
Howard Zehr is, by many, if not the originator then at least one of the pioneers. This is a quick must read. New and revised edition.
What does it mean?
That ought to be a pretty simple question to answer, but it isn't. Do you mean justice here and now, a century or a millennium ago? Do you mean Western Europe, among Native Americans, the Inuit, Maori or tribal Africa?
Justice means different things to different people in different places and in different times. It can even be different things to different people down the block, could even be neighbors and often are.
Justice systems as we know them in the West have been developed through the democratic process. The very nature of the democratic process, as we practice it, is that some people, the minority, are going to have to yield to the majority. Such systems are basically one-size-fits-all systems.
There can be dramatic differences from State to State, indeed, from County to County. Even with these variations, laws, rules, regulations and common practices are cookie-cutter systems and individual situations aren't honored very much. There is mounting evidence that trying to fit everyone into small or larger boxes, no one is being served.
Different Kinds of Justice
A system to enforce social controls in a society. The guilt or innocence of a person and the appropriate punishment for offenses are central. In our modern Western version the State becomes a surrogate for the victim.
Is about fairness when agreements between people have been broken. Victims are compensated for injuries suffered as a result of a crime or negligence of another person.
Is about the rights and obligations of individuals as members of a society.
Sometimes, the distinction between them is not as black and white as would be convenient. They often overlap, but are usually treated as separate issues.
Justice in America
In the traditional criminal justice system as we practice it in the West, the parties do not participate in the process very much. The crime is assumed to be against the State, not an individual. A Biblical parallel would be sin. A sin is against God, not an individual, but it might affect an individual who gets harmed.
Leaving justice up to the parties to settle themselves could be worse than the original crime. Revenge and vigilantism could and most likely would result. The State not only takes on the role of protecting the offender against an angry victim, but also the punishment of the offender on behalf of the victim.
The Old Testament talks about "an eye for an eye." This is figuratively speaking, of course. It doesn't mean that the offender would actually have an eye poked out. It simply means that justice is retributive. The punishment must fit the crime. Poking out two eyes, again figuratively speaking, would be revenge, not justice.
Procedurally, the State and the offender are represented by lawyers. The community is represented by a judge.
Many are beginning to talk about the inadequacies of our modern justice system. One of the biggest problems is that it does not contribute to healing the wounds left behind by crime. Some would even say it deepens them.
The hope for Restorative Justice is that it will introduce an element of healing and real long term solutions in which victims will be made whole, offenders will become productive members of society and the rest of us no longer have to worry about our safety.
Considering Hate challenges conventional wisdom about what justice is and how we deal with it.
Definition - What it is
Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible.
- Howard Zehr,
The Little Book of Restorative Justice
Justice has always existed in some form or another. The first known written laws are said to have been found in what is now Iraq. Clearly, laws have existed in oral form long before that.
Many cite a 1974 Elmira, Ontario incident where two youths vandalized 22 properties as the first documented case where some form of restorative justice was used.
There are elements from primarily two sources: Aboriginal culture in North America and Australia and Christianity.
For some aboriginals a crime or offense is a crime against the entire community. Thus, the entire community is involved in bringing healing for the victim, the offender as well as the community itself. The goal would be to restore harmony to all of these parties.
It is no coincidence that elements of Christianity are prominent. Howard Zehr, by many considered to be the originator, is himself a mennonite. Although reconciliation is not the primary goal, but often a side effect, as in Christianity, forgiveness and repentance are both central to healing.
The development of restorative justice is a project in progress. Howard Zehr uses a river fed by many smaller streams as a metaphor as the knowledge of what works and what doesn't work grows.
Various forms are being practiced throughout the world today. Since 1989, restorative justice has been the default for juvenile offenders in New Zealand.
Traditional Criminal Justice
The focus is on getting offenders what they deserve.
The focus is on what the victim needs to be made whole again and for the offender to take responsibility for making that happen.
The Parties - Referred to as Stakeholders
There are at least three parties to every crime. More often than not, many more people are affected than just the ones directly involved. Family members, friends, employers, employees, indeed entire communities could be affected.
Traditional justice systems take a narrow view dealing primarily with finding, prosecuting, convicting and punishing the perpetrator. Restorative justice takes a much wider view. The width can be made as wide as necessary so as to bring healing to everyone affected.
- Victim - The interest of the victim is obviously to be held harmless and to be made whole. Sometimes, as in the case of murder, this is not entirely possible. The goal is to get as close as possible, for the victim to heal and preferably make peace with the offender.
- Offender - Crimes create obligations. The offender's obligation is to make whole the victim to the extent possible. Restorative justice affords an opportunity for both victims and offenders to heal and restore their relationships.
- Community - The interest of the community is obviously first and foremost to prevent that the offender commits another crime. It is also interested in discouraging others from doing the same. The community has an interest in getting offenders re-integrated into society.
Most of us would probably say that a crime begins when it is committed and ends when the offender has paid the penalty in the form of punishment. One view is that the community's responsibility and indeed it's culpability begins with allowing an environment to exist that would lead someone to commit a crime. Similarly, the community's responsibility does not end with punishment, but with re-integration.
Models of Practice
All or some of these models may be used in a particular case. It all depends. Sometimes it even makes sense to blend them.
All models involve some sort of encounter. Participation must be voluntary by everyone. Sometimes an encounter is impossible or inappropriate. Alternatively, letters or videos may be used. Sometimes stand-ins or representatives may take the place of one or more parties.
The facilitator is there, not to impose solutions, but to guide the process, to encourage everyone to tell their story, express their feelings and needs, to work toward something everyone can identify as justice.
- Victim Offender Conference - The conference is led by a facilitator whose role is to keep the encounter in balance. The victim and the offender are encouraged to come up with a solution acceptable to both.
- Family Group Conference - The group is enlarged to include family members on both sides. Crimes aren't usually matters between two people, entire families are often affected. One goal might be to win the support of the offender's family to encourage positive behavior change.
- Circle - Circles may be used for several purposes. Most common are sentencing circles used for determining the kind of reparation. Healing circles may precede sentencing circles. Circles often include community members. The focus is really wide and can include such topics as what gave rise to the offense.
"Which approach is best?" you ask. Well, I'd say, "It depends." You see, every situation is different. Every individual is different. Every circumstance is different. Every case is different. Therefore, I think it should follow that every case is treated differently. Unlike the traditional justice system where cases are matched with or fit into a particular law, restorative justice takes a holistic approach and the resolution is forged out of the particular situation and the parties involved.
I think every case ought to start with seeking answers to the usual who, what, how, where, when questions. Even how the procedure is conducted is debatable. At least for now, it probably begins with educating all parties about what restorative justice is and how it works.
When One Party Refuses to Participate
Does restorative justice have anything to offer when a party refuses to participate or cannot be located?
Yes, because it focuses on the needs of victims rather than on meting out punishment for offenders. The goal is to repair the harm even if it can only be symbolically.
When accountability is understanding and acknowledging the harm being done rather than getting punished, the responsibility to make things right can still be accomplished even if the victim does not participate.
The community has needs and obligations of its own and its participation is very important particularly in determining and fixing the cause. Without community participation, offenders and victims can still heal, but perhaps in a more limited fashion.
Because it is not a blueprint or a plan for justice, each situation can be dealt with individually according to its particular requirements. Restorative justice points us in a particular direction. It does not take us there.
Although restorative justice's primary goal is to address the needs of victims, some victim advocates see it as a way to deal with offenders in a more positive way. They may have a valid point in that offenders can also themselves be victims of circumstances unrelated to the crime in question.
Offender advocates worry that restorative justice is just another way of punishing them. The requirement to naming and expressing the harm could indeed feel like punishment for some. They also worry that those underlying circumstances aren't being adequately addressed and whether proper support measures are in place for re-integration.