By Ted Grimsrud
“Human beings cannot be handled without love,” Leo Tolstoy wrote, and yet our concept and practice of criminal justice have been built upon the opposite. We have seen in the chapters above that the Bible supports Tolstoy’s assumption that love is fundamental—and provides our best definition of “justice.”
What would a concept of justice look like if it were based on love—that is, on respect and concern for the people involved, on a commitment to respond constructively? Could such a relational or restorative approach to justice not only be articulated but actually implemented (see Zehr, Changing and Zehr, Restorative Justice)?
A Grassroots Revolution
Since the late 1970s, a growing movement has sought to do just this. Eduardo Barajas, Jr., a program specialist for the National Institute of Corrections, has characterized it like this: “A revolution is occurring in criminal justice. A quiet, grassroots, seemingly unobtrusive, but truly revolutionary movement is changing the nature, the very fabric of our work.” He argues that it extends beyond most reforms in the history of criminal justice: “What is occurring now is more than innovative, it is truly inventive, … a ‘paradigm shift’” (Barajas, “Moving Toward Community Justice”).
The immediate source of this “restorative justice” movement may be traced back to two Mennonite practitioners in Ontario, Canada. Frustrated with existent criminal justice practices, trying to put into practice, their religious beliefs, seeking to be practical about peacemaking, they conducted a series of “victim-offender reconciliation” encounters between two juvenile offenders and the numerous people these young men had victimized in a drunken spree. This led to the implementation of various forms of victim-offender mediation or reconciliation throughout North America, Europe and elsewhere and to the development of restorative justice theory.
From of that tiny source emerged what has become an international movement. This restorative justice stream has many much deeper sources; indeed, its exact origin is obscure. It can be traced to a variety of religious traditions. During the past several decades it has been fed by the conflict resolution movement as well as the seemingly contradictory movements for victim rights and alternatives to prison. Feminist theory has provided an important awareness of how the patriarchal nature of our structures, including the justice system, but has also enriched the stream with its emphasis on an ethic of relationship.
The stream is fed in important ways from a variety of traditional values, practices, and customs. Indeed, two of the most promising forms of restorative justice today—Family Group Conferences and Circle Sentencing, come directly from aboriginal or indigenous values adapted to the realities of modern legal systems.
In contrast to the “retributive” paradigm of justice outlined earlier in this book, the concept of restorative justice underlying these approaches might be summarized like this:
(1) Crime is primarily a violation of, or harm to, people and relationships.
(2) Violations create obligations. The aim of justice is to identify needs and obligations so that things can be “made right” to the extent possible.
(3) The process of justice should, to the extent possible, involve victims, offenders and community members in an effort to mutually identify needs, obligations and solutions.
Key Ideas of Restorative Justice
The restorative justice concept may be framed in a variety of ways, but two ideas are fundamental: restorative justice is harm-focused and it promotes the engagement of an enlarged set of stakeholders. Most restorative justice can be seen as following from these two concepts.
Restorative justice views crime first of all as harm done to people and communities. Our legal system, with its focus on rules and laws, often loses sight of the reality that crime is essentially about causing harm. Consequently, the system makes victims at best a secondary concern of justice. A harm focus, however, implies a central concern for victims’ needs and roles. Restorative justice, begins with a concern for victims and how to meet their needs, for repairing the harm as much as possible.
A focus on harm also emphasizes offender accountability and responsibility—in concrete, not abstract, terms. Too often we have thought of accountability as punishment, that is, pain administered to offenders for they pain have caused. In reality, punishment has very little to do with actual accountability.
Little in the justice process encourages offenders to understand the consequences of their actions or to empathize with victims. On the contrary, the adversarial process requires offenders to look out for themselves. The process discourages offenders from acknowledging their responsibility and gives them little opportunity to act on this responsibility in concrete ways. The “neutralizing strategies”—the stereotypes and rationalizations that offenders use to distance themselves from the people they hurt—are never challenged.
However, if crime has most of all to do with harm, accountability means encouraging offenders to understand that harm, to comprehend the consequences of their behavior. Moreover, accountability means taking responsibility to make things right in so far as possible, both concretely and symbolically.
The principle of engagement suggests that the primary parties affected by crime—victims, offenders, members of the community—be given significant roles in the justice process. They need information about each other and involvement in deciding what justice in each case requires. In some cases, this may mean actual dialogue between these parties. In others it may involve indirect exchange or the use of surrogates. Regardless, engagement implies involvement of an enlarged circle of stakeholders as compared to the traditional justice process.
The three central questions of the retributive justice paradigm might be characterized like this: “What laws have been broken? Who ‘done’ it? What do they deserve?” The comparable questions for a restorative approach then might be these: “Who has been hurt? What are their needs? Whose obligations are they?
What Does Justice Require?
“What does the Lord require?” asks the Hebrew prophet Micah, and begins the answer like this: “To do justice….” But what does justice require? The latter question is central to restorative justice. What does justice require for victims? For offenders? For communities?
Out of the traumas of victims’ experiences come many needs (see Zehr, Transcending). Some of these have to be met by victims themselves and their intimates. But some of their needs are best addressed by the larger society, especially the justice process.
Victims badly need what might be called “an experience of justice.” This has many dimensions. Often it is assumed that vengeance is part of this need but various studies suggest that this is not necessarily so. The need for vengeance often may mostly be simply the result of justice denied.
The experience of justice seems to include public assurance that what happened to the victim was wrong, that it was unfair, that it was undeserved. Victims need to know that something is being done to make sure that the offense does not happen again. Often they feel the need for some repayment of losses, in part because of the statement of responsibility that is implied. So restitution and apologies from an offender can play an important role in the experience of justice.
Victims also need answers; in fact, crime victims often rate the need for answers above needs for compensation. Why me? What could I have done differently? What kind of person did this and why? These are just a few of the questions that haunt victims. Without answers, it can be very difficult to restore a sense of order and therefore to heal.
Another area may be termed “truth-telling”—opportunities to tell their stories and to vent their feelings, often repeatedly, to people that matter: to friends, to law enforcement people, perhaps even to those who caused this pain. Only by expressing their anger and by repeatedly telling their stories can many victims integrate this terrible experience into their own stories, their own identities.
Also, victims need empowerment. In the crime, an offender has taken power over victims’ lives—not only of their body and or property during the incident itself, but over their subsequent emotions, dreams and reality. Indeed, many victims find that, at least for awhile, the offense and the offender are in control of their psyche. That is profoundly unnerving. Without an experience of justice and healing, this too can last a lifetime.
Offenders indeed need to be held accountable, but in ways that encourage empathy and responsibility. They certainly have other needs as well. Instead of isolation, offenders need encouragement to be reintegrated—or integrated for the first time—into the community. They need opportunities for personal transformation. This implies focus on developing competencies (instead of the usual focus on deficiencies). It requires that they have an opportunity to have their own needs—including the harms and sense of victimization that may have led to their actions—addressed.
Although retributive justice is done in the name of the “community” (which actually means the state), in actuality the process leaves the actual human community of those affected by the crime is out. It addresses the community’s needs only abstractly, if at all. Fears and stereotypes are heightened rather than addressed. People are encouraged to view things in simple dichotomies—them and us, guilty or innocent—rather than appreciate real-life nuances. When the process leaves the community out of the justice process, the community misses important opportunities for growth and community building.
When we process conflicts in healthy ways, they provide the means to build relationships between people and within communities. Take this away, and you take away a fundamental building block of community and of crime prevention. Communities have needs well as responsibilities that must be addressed.
Examples of Restorative Justice
To address these needs, a diverse set of practices has emerged in various communities. Most work in a cooperative relationship with the existing justice system, receiving referrals from it. Many are designed to provide alternative sentencing options or alternatives to arrest or prosecution. Others, such as those that work with severe violence, may be primarily designed to assist the healing of victims and offenders, with minimal impact on legal outcomes. Most, however, involve some form of victim-offender conferencing. That is, they involve an opportunity is provided for a facilitated dialogue between victim and offender, often with a written restitution agreement as part of the outcome.
Three examples of restorative-oriented alternatives that have emerged include the following: (1) Victim Offender Conferencing (VOC); (2) Family Group Conferences (FGC); and (3) Sentencing Circles (SC).
(1) Victim Offender Conferencing. In North America, the leading form of victim-offender conferencing, at least until recently, has been called the Victim Offender Reconciliation Program, Victim Offender Mediation, or Victim Offender Conferencing (VOC).
In its “classic” form, it is operated in cooperation with the courts but often housed in separate non-profit organizations. Upon referral of a case by the court or probation service, trained volunteers separately contact victim and offender to explore what happened and determine their willingness to proceed. If they agree, victim and offender are brought together in a meeting facilitated by the volunteer mediator who serves as a neutral third-party. In this meeting, the facts of the offense are fully explored, feelings are expressed, and a written restitution contract worked out. This contract and a brief report then go back to the court or referring agency. If it is to become part of a sentence, it must receive final approval of the court, then becomes a condition of probation.
In its original form, VOC predominately handled property offenses such as burglary. Increasingly, however, programs are being designed to handle cases of violence, including offenses such as rape and homicide. Offenses like this, of course, require special precautions and procedures and so VOC is today taking many forms (see Amstutz, Victim Offender Conferencing).
(2) Family Group Conferences. Recently, new forms of conferencing are emerging, new applications are being tried, and new lessons are being learned as a result of two approaches originally rooted in indigenous traditions.
Family Group Conferences (FGC) emerged in New Zealand (and soon in Australia) in the late 1980s as a response, in part, to the concerns and traditions of the indigenous Maori population. The western-style juvenile justice system was widely recognized to be working poorly and many Maori argued that it was antithetical to their traditions; it was oriented toward punishment rather than solutions, was imposed rather than negotiated, and left family and community out of the process.
In the new juvenile system adopted in 1989, all juvenile cases with the exception of a few very violent crimes are diverted from police or court into FGCs. This was perhaps the first truly restorative approach to be institutionalized within a western legal framework.
Instead of court hearings, youth justice coordinators facilitate conferences including victims and offenders, though families of the offender are also an essential ingredient. Not only do families help to provide accountability and support but advocates argue that it empowers the family as well. Caregivers involved with the family may be invited and a youth advocate—a special attorney—is included to look out for the legal concerns of the offender. Victims too bring family or supporters. Moreover, the police (who are the prosecutors in this legal system) take part in the meeting.
The meetings are not only large but include parties with divergent interests and perspectives. This group is expected to come up with a recommendation for the entire outcome of the case, not just restitution, and they must do this by a consensus of the group! Even more startling, they actually manage to do so in most cases. Family Group Conferences are working well enough that many judges and other practitioners have called for their adaptation to the adult system in New Zealand and pilot projects are under way there (see McRae and Zehr, Family Group Conferences).
(3) Sentencing Circles. Sentencing Circles (SC) have developed as an effort to take seriously traditions and concerns of indigenous peoples. Until recently they operated primarily in Native Canadian or “First Nation” communities, but in Minnesota and other places they are being applied to a variety of settings, including inner-city neighborhoods and the workplace.
Sentencing Circles take a variety of forms. Usually, though, they work in conjunction with the formal legal process to provide forums for developing sentencing plans while at the same time addressing community-wide causes and problems. SCs bring together offenders, victims (or their representatives), support groups and interested community people to discuss what happened, why it happened, and what should be done about it. Discussions are apparently wide-ranging and aim toward a full airing of facts and feelings and consensus about solutions.
While the “punishment” or sentence of the offender is worked out here, primary emphasis is on healing of victim, offender, and (significantly) community. The principal value of the approach is the impact on communities. In reinforcing and building a sense of community, SC improves the capacity of communities to heal individuals and families and ultimately to prevent crime. These emerging practices imply a radically different approach to justice for offenders—one that emphasizes an accountability that is active rather than passive responsibility (see Prannis, Circle Process).
Along with these community oriented approaches to restorative justice, an additional approach has emerged that focuses on working within offenders within the prison system.
The “Resolve to Stop Violence Project” (RSVP) began in the mid-1990s as an attempt to apply restorative justice principles to violence reduction within prisons (Schwartz, Dreams). RSVP focuses on helping offenders to become aware of and acknowledge their violence. This process encourages a sense of responsibility that in most cases has been sorely lacking among the offenders—a lack exacerbated by the typical adversarial approach to criminal justice.
The success of RSVP has been striking thus far and it is gradually gaining adherents. Two recent studies of RSVP in the San Francisco County jails showed that for prisoners who took the entire 16-week class, 82% fewer were convicted of crimes as of a year later compared to similar prisoners who did not take the class (Epstein, “America’s Prisons”).
Tolstoy’s law suggests that justice needs to be redefined in new terms. Criminologists Richard Quinney and John Wildeman, in The Problem of Crime, set the context like this:
From its earliest beginnings…the primary focus of criminology has been on retribution, punishment, and vengeance in the cause of an existing social order…rather than a criminology of peace, justice and liberation.…If crime is violent and wreaks violence on our fellows and our social relations, then the effort to understand and control crime must be violent and repressive (40-41).
However, such an approach only intensifies the spiral of violence leading to greater violence. What is needed is something that breaks the cycle of violence. Quinney and Wildeman suggest that finally a peacemaking school of criminology is beginning to emerge.
I argue in this book that we do indeed need such a peacemaking approach to criminal justice. This peacemaking approach must take seriously (and vigorously critique) the philosophical and theological roots to retributive criminology. However, I have tried to show that the deepest roots of Western theology, found in the Bible, are indeed fully compatible with restorative (rather than retributive) justice. Thankfully, we have an increasing body of evidence that shows that restorative practices are possible—and effective.