The criminal justice system is second only to the educational system in the number of fads and “experiments” that temporarily course through the professional ranks. Some experiments—drug courts and victim statements are recent examples—show staying power and eventually become a regular facet of criminal courts.
Restorative justice, a relatively recent development in the criminal justice system, is making a bid to follow drug courts as an experiment that eventually becomes a regular part of the mainstream experience of justice. Although programs that comprise portions of the restorative justice ideal have existed for many years, the concept of a holistic umbrella under which restorative programs can thrive is relatively new.
In short, restorative justice is a process by which the harm done to victims of crime can be reduced or repaired. This is generally a cooperative effort between victim and defendant in which defendants are made aware of the personal impact of their criminal actions. In addition, the victim of the crime has an opportunity to work with the defendant in an attempt to dissuade the defendant from committing similar crimes in the future.
In practice, restorative justice typically involves two major phases: opportunities for victims of crime to communicate with defendants, and opportunities for the community to impact the sentence and encourage the defendant to make different choices in the future. According to Restorative Justice Online, a restorative justice evangelism and resource guide, these phases often include victim/defendant mediation, victim impact circles and conferences, victim assistance by or with the defendant, monetary and nonmonetary restitution, and comprehensive community service opportunities. Many of these programs exist individually throughout the country but lack a central theme to drive and manage them cohesively within a given jurisdiction. Restorative justice attempts to remedy this.
Why should we care? Without community involvement in criminal proceedings, the perception by the community may be that their input isn’t needed or warranted. Where restorative justice has been implemented, victims and defendants alike often praise the move away from retributive justice in which victims and the community have little, if any, impact on judicial proceedings. On the other hand, there are some types of cases—such as sexual assault or domestic violence—in which the victim’s cooperation with the defendant may not be appropriate under any circumstances. In these cases, restorative justice may involve more of the community than the individual stakeholders.
In the United States, many restorative justice programs have been patterned after victim and defendant experiences in tribal courts in the 1990s. Tribal court criminal proceedings often permit any and all stakeholders to make a statement to the court and to the defendant. This includes victims and their families, relatives of the defendant, affected community members, and sometimes individuals in tribal government. Fact finders may take any and all of these statements into account when considering a verdict or sentence.
Like many recent experiments in the criminal justice system, the success of restorative justice is mixed. In 2005, attorney Karen Gottlieb’s survey of four restorative justice programs reflected muddied results:
Success was documented as a “slowing down” of alcohol and drug use in adult participants; however, graduates were as likely to reoffend as nongraduates, and participants as a whole had a relatively high 3-year recidivism rate that ranged from 50–64 percent in the adult courts and over 90 percent in the juvenile courts. For the adult program, graduates took longer to reoffend than nongraduates, and participants had fewer postprogram charges compared to their preprogram criminal histories. Juvenile graduates as a whole, on the other hand, showed no differences in recidivism patterns between graduates and those who did not complete the court program.
Explanations for the difference in effectiveness between juvenile and adult defendants were not addressed by Gottlieb in her survey, but it may be that the more invested a defendant is in the community, the more effective restorative justice can be. As juveniles often have less of a connection to community than adults, restorative justice may need to be adjusted to include more family members or different restitution models for juvenile offenders.
As lawyers, the concept of restorative justice may make us a bit cautious because we lose some control of what statements and evidence are presented to the court, regardless of which side of a criminal proceeding we are on; to present our best case often means hours of dedicated witness preparation and selecting the most compelling arguments for the jury. To have our advocacy subject to one or two incredibly impactful victim statements may be more than many lawyers are comfortable with. Conversely, attorneys may find that they prefer restorative justice in sentencing and postsentencing services because the penalties may be reduced with more community involvement and (potentially) less recidivism.
Whether restorative justice is here to stay or disappears as a failed fad remains to be seen. But when it comes to reducing recidivism and harm to victims, restorative justice may be one experiment that is worth taking a look at.
For more information, see the following:
- Restorative Justice Online: www.restorativejustice.org.
- Karen Gottlieb, Process and Outcome Evaluations in Four Tribal Wellness Courts. Washington, DC: US Department of Justice (2005), available at www.ncjrs.gov/pdffiles1/nij/grants/231167.pdf.
- Judge Tracy McCooey, Maverick in Problem-Solving Courts and Restorative Justice (video series), www.cuttingedgelaw.com/video/judge-tracy-mccooey-maverick-problem-solving-courts-and-restorative-justice (retrieved July 13, 2011).
- Leena Kurki, Restorative and Community Justice in the United States, 27 Crime and Just. 235–303 (2000).
- Michael Dooley, Classification and Restorative Justice: Is there a Relationship?, Topics in Community Corrections, Annual Issue, 1999, http://static.nicic.gov/Library/period165.pdf.
- André Léger, Restoration or Retribution: An Empirical Examination of the Recidivistic Patterns of a Group of Young Offenders from New York City (1999) (unpublished M.A. thesis, Department of Sociology, Queen’s University, Kingston, Ontario, Canada), http://qspace.library.queensu.ca/bitstream/1974/5364/1/Leger_Andre_200912_MA.pdf.
- Marc Forget, Restorative Justice in Prisons: An Evolution from Victim Offender Mediation in 1998, to a Restorative Prison Wing in 2001, to a Holistic, Multi-Sector Project in 2004, presentation at ancillary meeting #40, Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Apr. 24, Bangkok, Thailand (2005), www.pfi.org/cjr/about-cjr/un-initiatives/11thcongress/rjprisonsmeeting/forgetpres/view.