Making Sentencing More Restorative
Restorative justice is increasingly influential around the world. The UN recommends that countries use it more and has endorsed basic principles to ensure that it is effectively blended with criminal justice.
Some mistakenly believe, however, that restorative justice is a specific programme. It is in fact a theory of justice that calls all parties—victims, offenders, communities and the government—to recognise the importance of repairing the harm caused by crime.
This means that judges can often incorporate restorative principles when considering sentences, even if restorative processes such as victim-offender mediation are not available.
Of course they must follow the law, but often judges have opportunities to exercise some discretion even in civil law countries. Existing sanctions, such as probation, may offer enough latitude that sentences can become more restorative.
Long-term change is likely to involve legislative change and the development of new programmes within the criminal justice system. The Centre can assist those who want to implement such changes. It also stands ready to help judges consider what can be done under the existing laws and institutions.
Ten Keys to Making Sentences More Restorative
Inclusion: Allow the people affected by the crime—victims, defendants, their families and communities—to help shape and then participate in restorative processes.
Key 1: Conduct Surveys: Invite a university professor to interview them to learn how they feel about what happens in court and what changes they suggest to make the processes more satisfactory to them.
Key 2: Consider Changes: No case is exactly like all the others. A process designed for hardened criminals who deny guilt will not work as well for first-time offenders who admit what they did. Identify changes in procedures that would increase the involvement of different kinds of victims and defendants.
Key 3: Always Ask: Don’t assume that the parties will or will not want to meet the others or participate in some other way. Allow them to decide by offering them that opportunity, while attending to their need for safety and respect.
Encounter: Give the parties an opportunity to meet the others in a safe environment to discuss the offence, the harms that resulted and what needs to be done to repair the harms.
Key 4: Understand Alternatives: Learn about effective programmes such as victim-offender mediation, family group conferences and sentencing circles. These can be used after guilt is determined but before sentencing or as part of the sentence.
Key 5: Develop Programmes: Identify qualified staff or volunteers for training in how to facilitate restorative encounters. Get their agreement to explain and facilitate these encounters when victims and defendants are willing.
Key 6: Use Agreements: Develop criteria for referring the parties to a restorative process, and take the resulting agreement into serious consideration when imposing a sentence.
Amends: Give defendants the opportunity to repair the harms they have caused to the extent possible.
Key 7: Allow Apologies: Coerced apologies will not be meaningful to either the victim or offender. But a sincere apology can be healing for victims. The best way for victims to test an apology is during a restorative encounter.
Key 8: Enforce Restitution: In some jurisdictions restitution is ordered but not paid. This is not fair to victims. It may be that the offender was unable to pay, in which case it should not have been ordered. Or the offender may not have taken the order seriously, in which case it should be enforced.
Reintegration: Help the parties find the means and opportunity to rejoin their communities as whole, contributing members.
Key 9: Think Safety: The safety of the parties is always important. Many people sentenced to prison do not actually pose a danger to the victim or society. Imprisonment decreases the chance for the offender to make amends or to become a contributing member of society.
Key 10: Assist Victims: Victims of crime may need assistance from the moment the crime occurs. But they may also need help during the court processes to understand when they actually need to be present and what they can expect to happen. They need to be treated with respect and dignity.
Systemic Change
Structural reforms could cause restorative principles to become more fully incorporated into sentencing practices. Some of these include:
- Legislative enactment of new principles of sentencing based on restorative justice theory.
- Funding of well-run programmes to facilitate restorative encounters and amends. These can be either NGO-based or governmental, or both.
- Legislative enactment of presumptions or mandates concerning use of restorative processes for classes of offenders and victims who agree, rather than traditional criminal justice processes and sanctions.
- Legislation that grants discretion to judges to use restorative processes and principles in sentencing.
- In common law countries, at least, a restorative jurisprudence can develop as individual judges apply restorative principles and programmes when sentencing.
Download the Ten Keys to Making Sentencing More Restorative in PDF format.