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Below is an introduction to restorative justice, a Social Justice addition suggested by Chaplain Paul Rogers -- Secretary of the American Catholic Correctional Chaplains Association, a group who helped write Responsibility, Rehabilitation and Restoration. Rogers has experienced the emergence of restorative justice theory and programs as an increasingly influential world-wide alternative to criminal justice practice. Chaplain Rogers prepared an introductory overview; the material is used with permission and with gratitude. (Juan Melendez and Bud Welch, Prison Fog, Reflection on the Abuse of Iraqi Prisoners, and Ponderings in Jail are related pieces.) |
Moving from Retributive Justice to
Restorative Justice
Alternatives Needed Definitions Benefits Principles Programs and Processes
Potentially-Restorative Outcomes Socio-Legal Issues Legal Issues Action Alerts!
The United States is currently the world leader in incarceration: 1 of every 100 adults, the highest reported rate in the world, including the far more populous country of China. According to the Pew Charitible Trusts report, One in 100: Behind Bars in America in 2008, the number of inmates in U.S. prisons was 1,596,127 in January 2008. The rate of increase for prison costs was six times greater than for higher education spending, the report said.
Facts about Prisons and Prisoners,
as reported by the Sentencing Project, highlights the need to move from a criminal justice system focused on retributive justice to a system with a firm foundation of restorative justice:
- At the end of 2005, 1 of every 136 Americans was incarcerated in prison or jail.
- The number of youth held in adult jails has exploded by 208 percent.
- 68 percent of state prison inmates in 1997 had not completed high school. 36 percent of jail inmates in 1996 were unemployed prior to entering jail.
- Black males have a 32 percent chance of serving time in prison at some point in their lives; Hispanic males have a 17 percent chance; white males have a 6 percent chance.
- Two-thirds (68 percent) of federal prisoners are racial and ethnic minorities – 39 percent black, 29 percent Latino.
- The sentenced portion of the federal prison population has grown enormously in the past 20 years – from 19,765 in 1981 to 115,000 in 2001. During that same period the percentage of drug offenders in federal prison has increased from 25 percent to almost 60 percent.
- Since 1980 the number of women in prison has increased at nearly double the rate for men. Nearly a quarter of women in state prisons have a history of mental illness.
- One of every 23 inmates in prison today is age 55 or older, an 85 percent increase since 1995.
- An estimated 5.3 million U.S. citizens, or one in forty-one adults, have currently or permanently lost their voting rights as a result of a felony conviction.
To quote the "godfather" of restorative justice, Howard Zehr: Viewed through a restorative justice lens, "crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance." (Changing Lenses: A New Focus for Crime and Justice)
Restorative justice is a response to crime that focuses on restoring the losses suffered by victims, holding offenders accountable for the harm they have caused, and building peace within communities.
Restorative justice, then:
- Is a different way of thinking about crime and our response to crime
- Focuses on the harm caused by crime: repairing the harm done to victims and reducing future harm by preventing crime
- Requires offenders to take responsibility for their actions and for the harm they have caused
- Seeks redress for victims, recompense by offenders, and reintegration of both within the community
- Is achieved through a co-operative effort by communities and the government.
In short, restorative justice is a process through which remorseful offenders accept responsibility for their misconduct to those injured and to the community that, in response, allows the reintegration of the offender into the community. The emphasis is on restoration: restoration of the offender in terms of his or her self-respect, restoration of the relationship between offender and victims, as well as restoration of both offenders and victims within the community. (John Haley "Crime Prevention Through Restorative Justice: Lessons from Japan" in Restorative Justice: International Perspectives.)
Restorative justice improves upon the traditional criminal justice in that it has the following benefits. It:
- Views criminal acts more comprehensively: rather than defining crime only as lawbreaking, it recognizes that offenders harm victims, communities and even themselves
- Involves more parties: rather than giving key roles only to government and the offender, it includes victims and communities as well
- Measures success differently: rather than measuring how much punishment has been inflicted, it measures how much harm has been repaired or prevented
- Recognizes the importance of community involvement and initiative in responding to and reducing crime, rather than leaving the problem of crime to the government alone
The previous definitions all agree and stand on these principles. The principles of restorative justice have been summarized as follows:
- Justice requires that we work to restore those who have been injured.
- Those most directly involved and affected by crime should have the opportunity to participate fully in the response if they wish.
- Government's role is to preserve a just public order, and the community’s role is to build and maintain a just peace.
A number of programs have become associated with restorative justice because of the processes they use to respond to and repair the harm caused by crime:
- Victim-Offender Mediation- use trained mediators to bring victims and
their offenders together in order to discuss the crime, its aftermath, and the steps needed to make things right
- Conferencing Circles- programs are similar to victim-offender reconciliation/mediation, but differ in that they involve not only the offender and victim, but also their family members and community representatives
- Victim Assistance- provide services to crime victims as they recover from the crime and proceed through the criminal justice process
- Ex-Offender Assistance- provide services to offenders while they are in prison and on their release
- Community Crime Prevention- programs reduce crime by addressing its underlying causes
Although reparative in nature, the following outcomes are not inherently restorative since they can be -- and have been -- used in ways that are more destructive or vindictive than reparative. However, when they are the outcome of a restorative process, they can provide important avenues for "making things right."
- Restitution Programs- require offenders to repay those who have been harmed by their offenses, generally through monetary payments but in some cases through in-kind services to the victims
- Community Service- require offenders to address the indirect harm to a community caused by crime by performing unpaid work that benefits the community
- Victim Compensation Fund- provide payment to victims by the government or another party unrelated to the offender, in an amount based on the nature and extent of the harm received
Restorative justice has many socio-legal implications related to its implementation. Among some of the issues discussed in this section
- Rights vs. Responsibilities- examines the socio-legal implications of different perspectives -- that of the traditional criminal justice system emphasis on defining and protecting individuals' rights through formal, adversarial processes, and of the restorative emphasis on assuming responsibilities and collective conflict-resolution through informal processes
- Norm/Value Explication and Clarification- asserts the ability of a restorative justice system to promote education of norms and/or values held communally and/or universally
- Fairness and Justice- re-examines the meaning of "fairness" within the traditional and restorative systems, and how it relates to their different processes for achieving justice
- Discretion- deals with the issue of what entity has the authority to decide the course of a particular case within the context of a system with restorative interventions
Among a number of reform movements of the past 25 years, restorative justice grew out of the informal justice movement, the victim rights movement, and the restitution/diversion movement (designed to alleviate the burden put on the judicial system by increasingly incarcerative responses to crime). As its antecedents did, restorative justice has raised several legal issues related to its implementation as a system of criminal justice. Among these are jurisprudential concerns, victims' and offenders' rights, and procedural issues. More specifically, in this section
Due Process: deals with the procedural protections traditionally accorded offenders, and the extent to which restorative processes provide those protections--
- Presumption of innocence assesses the restorative justice system's ability to preserve the presumption that the person is innocent, unless, and until, the person's guilt is proven
- The right to a fair trial/coercion explores the degree to which the offender retains the right to a formal trial in a restorative justice system, and the extent to which the coercive forces of such a system would be so overwhelming as to essentially compel the offender to take part in a restorative process;
- The right to assistance of counsel deals with the question of what role attorneys play in a restorative process, and the offender's ability to safeguard his rights vis a vis assistance of legal counsel
- Equal Protection/Discrimination: describes the potential for the restorative justice system to even-handedly administer justice without regard to race, gender, religion, national origin, social standing, etc., and raises as a concern the inequities that could exist based on these and other factors
- Victims' Rights: discusses the assertion (and its equal protection implications) that victims are interested parties who should have standing and should be granted rights accordingly
- Proportionality: examines the goal for the traditional system in which similar offenses result in similar outcomes to satisfy a sense of fairness, and the notions of fairness within a restorative system which are based on consensus of agreement given a range of alternatives -- e.g., participant satisfaction.
Current dialogue suggests that Retributive Justice in the criminal justice system cannot realistically be replaced wholly with the Restorative Justice model. It is not, an "either-or" proposition; but a better balanced, "both-and" proposition. To achieve this balance, citizens need to support all efforts to promote Restorative Justice programs in their communities.
Abuse of prisoners in Abu Ghraib prison in Iraq put a spotlight on prisons in the U.S. as well as Iraq. According to corrections officials, inmates and human rights advocates, there is physical and sexual mistreatment of prisoners in U.S. prisons -- with little public knowledge or concern.
There are several ways to further the understanding and development of restorative justice programs within your community and within the criminal justice system:
- Join activists across the U.S. to end solidarity confinement.
- Reflect on the Ending Torture in U.S. Prisons report.
- Learn more at Equal Justice Initiative, including their report: Cruel and Unusual: Sentencing 13- and 14-Year Old Children to Die in Prison.
- Support a full review of the entire criminal justice system.
- Reflect on real people and their real stories with restorative justice processes.
- Check out Heartspeak Productions videos about the principles and best practices of restorative justice.
- Start a mentoring program similar to BronxConnect in your community.
- Explore some of the best restorative justice sites on the web to learn more about this alternative to the retributive justice. Attend a restorative justice-related conference. Check out Restorative Justice Online's blog.
- Study Targeting Blacks, a report on drug law enforcement and race in the U.S.
- Form a group to discuss The Real Cost of Prisons. Learn about and support Treatment Instead of Prison programs.
- Support the Books to Prisons project.
- Join Critical Resistance to help end the prison industrial complex.
- Individually and communally, read and reflect on the bishops' pastoral Responsibility, Rehabilitation and Restoration. For church, school, and pastoral settings -- consider purchasing videos available through the International Institute for Restorative Practices.
Gratitude to the Sisters of Christian Charity -- Pauline Ministry Fund
for supporting the addition of this critical social justice issue.
Modified February 1, 2012.
For social justice advocates' experiences of serving time in jail,
see Reflection on the Abuse of Iraqi Prisoners, Ponderings in Jail, and Prison Fog.