Restorative justice
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Restorative justice is a theory of criminal justice that focuses on crime as an act against another individual or community rather than the state. The victim plays a major role in the process and receives some type of restitution from the offender.
Restorative justice takes many different forms, but all systems have some aspects in common. Victims have an opportunity to express the full impact of the crime upon their lives, to receive answers to any lingering questions about the incident, and to participate in holding the offender accountable for his or her actions. Offenders can tell their story of why the crime occurred and how it has affected their lives. They are given an opportunity to make things right with the victim—to the degree possible—through some form of compensation.
For petty or first-time offenses, a case may be referred to restorative justice as a pretrial diversion, with charges being dismissed after fulfillment of the restitution agreement. In more serious cases, restorative justice may be part of a sentence that includes prison time or other punishments.
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History
Restorative approaches to crime date back thousands of years:
- In Israel, the Pentateuch specified restitution for property crimes.
- In Sumeria, the Code of Ur-Nammu (c. 2060 B.C.) required restitution for offenses of violence.
- In Babylon, the Code of Hammurabi (c. 1700 B.C.) prescribed restitution as a sanction for property offenses.
- In Rome, the Twelve Tables (449 B.C.) ordered convicted thieves to pay double the value of stolen goods.
- In Germany, tribal laws promulgated by King Clovis I (496 A.D.) called for restitutional sanctions for both violent and nonviolent offenses.
- In England, the Laws of Ethelbert of Kent (c. 600 A.D.) included detailed restitution schedules.
Retributive justice began to replace this system following the Norman invasion of Britain. William the Conqueror's son, Henry I, issued laws detailing offenses against the “king’s peace.” By the end of the 11th century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state.
In the 20th century, restorative justice started becoming more popular. Communities in the United States, Great Britain, and Australia began instituting restorative justice programs. Although some pilot programs for adult offenders showed promising results, most restorative justice programs focused on juveniles.
Types of restorative justice
Victim-offender mediation
Victim-offender mediation, or VOM (also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue), is usually a face-to-face meeting, in the presence of a trained mediator, between the victim of a crime and the person who committed that crime. This system generally involves a small number of participants, and often is the only option available to incarcerated offenders, due to limits on visitors.
Family group conferencing
Family group conferencing (FGC) has a much wider circle of partipants than VOM. In addition to the primary victim and offender, participants may include people connected to the victim, the offender’s family members, and others connected to the offender. FGC is often the most appropriate system for juvenile cases, due to the important role of the family in a juvenile offender’s life.
Community restorative boards
A community restorative board typically is composed of a small group of citizens, prepared for this function by intensive training, who conduct public, face-to-face meetings with offenders sentenced by the court to participate in the process. During a meeting, board members discuss with the offender the nature of the offense and its negative consequences. Then board members develop a set of proposed sanctions which they discuss with the offender, until they reach agreement on the specific actions the offender will take within a given time period to make reparation for the crime. Subsequently, the offender must document his or her progress in fulfilling the terms of the agreement. After the stipulated period of time has passed, the board submits a report to the court on the offender’s compliance with the agreed upon sanctions. At this point, the board’s involvement with the offender is ended.
Sentencing circles
Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve the victim, victim supporters, the offender, offender supporters, judge and court personnel, prosecutor, defense counsel, police, and all interested community members. Within the circle, people can speak from the heart in a shared search for understanding of the event, and together identify the steps necessary to assist in healing all affected parties and prevent future crimes.
Sentencing circles typically involve a multi-step procedure that includes: (1) application by the offender to participate in the circle process; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle to develop consensus on the elements of a sentencing plan; and (5) follow-up circles to monitor the progress of the offender.
Limitations on restitution
Some judicial systems only support monetary restitution agreements. For instance, if the victim and offender agreed that the offender would pay $100.00 and mow the victim's lawn 5 times during the months of June and July, the court would only note the $100.00 as restitution. To avoid difficulty in collecting the full restitution, some agreements specify a larger monetary amount (e.g. $200.00) to be paid if the nonmonetary restitution is not provided.
Many jurisdictions place a cap on the restitution a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors. In addition, personal work service usually must be supported by the juvenile's parents.
According to the Victim Offender Mediation Association, victims are not allowed to make a profit from restitution; only their actual out-of-pocket losses can be recovered. Young offenders are often willing to agree to anything to have the session end. If the restitution is unreasonable, however, the court may throw the agreement out.
If the facilitator is not adequately trained in avoiding these pitfalls, a failed restitution agreement may result.
Confidentiality
Some restorative justice systems, especially victim-offender mediation and family group conferencing, require participants to sign a confidentiality agreement. These agreements usually state that anything discussed in the conference will not be disclosed to non-participants. The rationale for confidentiality is that it promotes open and honest communication during the process.
Cases unsuitable for restorative justice
Cases in which the offender denies responsibility for the crime or has no remorse are unsuitable for restorative justice and are usually referred back to court.
If the victim is unwilling to participate, the effectiveness of restorative justice is diminished, because the process depends on holding the offender directly accountable to the victim. Offenses without a readily identifiable victim, such as truancy or marijuana possession, are less suitable for restorative justice than other crimes, according to Prince William County, Virginia juvenile probation officer Danielle McCauley.
Recidivism statistics
A study of 1,298 juveniles conducted throughout the late 1980s and 1990s found a 32% reduction in recidivism relative to a comparison group, according to an article in the Summer 1999 edition of VOMA Connections. The Fiscal Year 2004 annual report of Prince William County, Virginia's Restorative Justice Program found that of the 234 offenders served in Fiscal Year 2003, 18 had re-offended through June 30, 2004, for a recidivism rate of 8%. A 2001 report by Department of Justice Canada found that "restorative justice programs, on average, yielded reductions in recidivism compared to non-restorative approaches to criminal behavior."
References
- A Shifting Paradigm: Modern Restorative Justice Principles Have Their Roots in Ancient Cultures (http://www.drc.state.oh.us/web/Articles/article28.htm), Reginald A. Wilkinson, Corrections Today, Dec. 1997.
- Similarities and Differences Between Family Group Conferencing and Victim-Offender Mediation (http://www.ojp.usdoj.gov/ovc/publications/infores/restorative_justice/96523-family_group/family6.html), Family Group Conferencing: Implications for Crime Victims, Mark S. Umbreit, Ph.D., Center for Restorative Justice & Peacemaking (formerly Center for Restorative Justice & Mediation), School of Social Work, University of Minnesota St. Paul, Minnesota, Apr. 2000.
- Restorative Justice FAQ (http://www.voma.org/rjfaq.shtml), Victim Offender Mediation Association.
- Community Restorative Board (http://www.ojp.usdoj.gov/nij/rest-just/CH5/9_restbd.htm), Restorative Justice Fact Sheet, U.S. Department of Justice.
- Sentencing Circles (http://www.ojp.usdoj.gov/nij/rest-just/CH5/3_sntcir.htm), Restorative Justice Fact Sheet, U.S. Department of Justice.
- Interview of Danielle McCauley, Analysis and Recommendation for Streamlining Restorative Justice Case Management, Nathan Larson, Prince William County Restorative Justice Program, Dec. 14, 2001.
- Participation in Victim-Offender Mediation Reduces Recidivism (http://www.voma.org/docs/connect3.pdf), William R. Nugent, Ph.D, Mark S. Umbreit, Ph.D., Lizabeth Wiinamaki, Jeff Paddock, VOMA Connections, Sum. 1999.
- Annual Report FY 2004, Restorative Justice Program, Prince William County Office of Dispute Resolution, 2004.
- The Effectiveness of Restorative Justice Practices: A Meta-Analysis (http://www.justice.gc.ca/en/ps/rs/rep/meta-e.pdf), Research and Statistics Division Methodological Series, Department of Justice Canada, 2001.