Restorative Justice Around the World

Restorative Justice: A New Paradigm

Restorative justice is the name given to a movement within and outside of the criminal justice system. Some of its practitioners and proponents refer to it as a new paradigm, or a new pattern of thinking.  It poses new questions for societies to ask and answer in responding to crime.

Discussions about restorative justice often begin by comparing it to the current criminal justice system.  Perhaps the classic example of this is Howard Zehr's contrast of retributive justice versus restorative justice.  Retributive justice, he argues, begins with a particular understanding of crime: it "is a violation of the state, defined by lawbreaking and guilt.  Justice determines blame and administers pain in a contest between the offender and the state directed by systematic rules."¹

Restorative justice sees things differently.  "Crime is a violation of people and relationships," Zehr writes.  "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."²

Retributive justice focuses on the violation of law, whereas restorative justice focuses on the violation of people and relationships. Retributive justice seeks to vindicate law by determining blame and administering punishment, whereas restorative justice seeks to vindicate victims by acknowledging their injury and by creating obligations for those responsible to make things right. Retributive justice involves the state and the offender in a formal process of adjudication, whereas restorative justice involves victims, offenders and community members in a search for solutions.

Other people have put it differently, but Zehr's dichotomy is helpful. It demonstrates how looking at old problems in new ways makes it possible to arrive at new understandings and responses. We can respond to behaviour that breaks the law by focusing exclusively on the rule that was broken or by looking first at the harm it causes to people and relationships.  How we look at crime will lead us to a response that seems logical and right.  The restorative response is to focus on repairing harm. 

The History of Restorative Justice

In explaining what restorative justice is, it is important to remember that this is a theory of justice that has grown out of experience.  It has been informed by indigenous and customary responses to crime, both those of the past and those used today.  Its modern development probably began in response to the first victim offender mediation programmes developed in the mid-1970s in Canada.  These programmes started as an alternative to probation for young offenders and expanded into pre-sentence programmes that allowed the victim and offender to construct a sentencing proposal for the judge's consideration.  It was assumed that offenders would benefit from this exposure to the needs of the victim, and that this would reduce recidivism and increase the likelihood of restitution being completed.  What was not expected was that crime victims would also benefit from this approach, reporting higher satisfaction levels than with traditional court processes.³

As practitioners and observers reflected on why this might be, they concluded that it was because victims were essentially non-participants in traditional criminal justice processes.  They might testify if called as witnesses, but in criminal proceedings they were not decision-makers or active participants.  On the other hand, victims involved in victim-offender mediation liked being able to shape the outcome if they wanted to.  For that matter, offenders were also non-participants in court proceedings.  Although the criminal justice system revolves around them, or perhaps in some countries because it focuses on them, their role is essentially passive.  In North America, Europe and other developed countries it is the defendants' lawyers who are active in legal proceedings.

In the past 20 years, restorative justice has become an influential movement in many countries. Michael Tonry begins a survey of American sentencing policy by observing that there are now four competing conceptions of sentencing --indeterminate, structured sentencing (e.g., guidelines), risk-based sentencing and restorative/community justice. ⁴

His reason for including restorative justice in this group of four is relevant to our discussion.  "A fully elaborated system exists nowhere," he points out, "but there is considerable activity in many States, and programmes based on community/ restorative principles are beginning to deal with more serious crimes and criminals and to operate at every stage of the justice system, including within prisons."⁵  It is "spreading rapidly and into applications that a decade ago would have seemed visionary.  These include various forms of community involvement and emphasise offender accountability, victim participation, reconciliation, restoration and healing as goals (though which goals are emphasised and with what respective weights vary widely)."⁶

In other words, restorative justice has significant influence in US sentencing policy debate because of its demonstrated ability to function within all phases of the justice process and to address serious offences and offenders.

This is true outside of the US as well.  Restorative justice programmes and policies are proliferating at a remarkable speed around the world, as we will see shortly.  But first, let us consider how we might define restorative justice. 

A Definition of Restorative Justice

British criminologist Tony Marshall has proposed a definition of restorative justice that is increasingly used internationally: "Restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future."⁷

This procedural definition is helpful, although it raises questions: Who are the "parties with a stake in the offense"? How do they come to a collective resolution?  What does it mean to "deal with the aftermath of an offense"?  What "implications for the future" should be considered?  While answers to those questions must be worked out in specific contexts, Susan Sharpe, a Canadian, has proposed five key principles of restorative justice that help round out Marshall's definition.⁸

First, restorative justice invites full participation and consensus.  This means that victims and offenders are involved, but it also opens the door to others who feel that their interests have been affected (for example, neighbors who have been indirectly harmed by the crime).  The invitation to participate underscores the benefits of voluntary involvement, although of course offenders may participate in order to avoid traditional criminal processes.

Second, restorative justice seeks to heal what is broken.  A central question asked in any restorative process is "What does the victim need to heal, to recover, to regain a sense of safety?" Victims may need information; they may need to express anger toward the person who has harmed them; they may need reparation.  Offenders, too, many need healing: release from guilt or fear; resolution of underlying conflicts or problems that led to the crime; an opportunity to make things right.

Third, restorative justice seeks full and direct accountability.  Accountability does not simply mean that offenders must face the fact that they have broken the law; they must also face the people they have harmed and see how their actions have damaged others.  They should expect to explain their behavior so that the victim and community can make sense of it.  They should also expect to take steps to repair that harm.

Fourth, restorative justice seeks to reunite what has been divided.  Crime causes divisions between people and within communities.  That is one of the most profound harms that it causes.  Restorative processes work toward reconciliation of the victim and offender, and reintegration of both into the community. A restorative perspective holds that the "victim" and "offender" roles should be temporary, not permanent.  Each should be drawn toward a future in which they are free of their past, no longer defined primarily by the harm they may have caused or suffered.

Finally, restorative justice seeks to strengthen the community in order to prevent further harms.  Crime causes harm, but crime may also reveal pre-existing injustices.  These can be as localised as a long-term dispute between the "offender" and the "victim" that erupted into criminal behaviour.  It can be as systemic as racial and economic inequities that, while not excuse the offender's behaviour, must be addressed in order to strengthen the community and make it a just and safe place to live.⁹

Hallmark Programmes of Restorative Justice

The processes that Tony Marshall describes, and the principles that Susan Sharpe outlines, have been demonstrated for thousands of years in informal, customary traditions.  More recently they have been implemented in a variety of ways within and alongside the criminal justice system.  However, three programmes have become hallmarks of restorative justice processes: victim offender mediation, community conferencing, and peacemaking circles.  Two other programmes have been given acknowledged as being potentially restorative outcomes: restitution and community service.

a. Victim Offender Mediation.  The first contemporary restorative process was victim offender mediation.  In its prototypical form, this programme brings together victims and their offenders, using a trained facilitator to coordinate and facilitate the meeting.  In the course of the meeting the victims describe their experiences with the crime and the effect it has had on them.  The offenders explain what they did and why, answering questions the victim may have. When both victim and offender have had their say, the mediator will help them consider ways to make things right. Typically the mediator will have met with each party prior to their meeting to prepare them.

In some European countries, mediation does not necessarily involve a direct meeting between the two parties.  Instead, the mediator conducts shuttle negotiation with each party until an agreement on restitution is reached.  Such an approach satisfies some restorative principles, but not as many as a direct meeting can accomplish.

Victim offender mediation can take place at any time during the criminal justice process, or outside the system altogether.  Like the other restorative processes, it will occur after guilt is no longer an issue either because there has been a conviction or because the defendant admits responsibility. It can take place after sentencing, and even when it will have no effect on the sentence to be imposed. For example, homicide survivors in the State of Texas may request mediated meetings with persons on death row who murdered their relatives.

Obviously, victim offender mediation will not work if either the victim or the offender is unwilling to participate.  Furthermore, power imbalances between the two can create obstacles to fair and frank discussion.  Much of the success of the programmeis dependent on the skill of the mediator.

Mediation programmes started in Canada and have expanded throughout North America, Europe and other parts of the world.

b. Community Conferencing. Conferencing was developed in New Zealand as an alternative to Youth Courts. It was adapted from traditional processes of the Maori people, the indigenous population of New Zealand. Conferencing has been further adapted as it has been used in other countries, and there are now several versions of conferencing found in New Zealand, Australia, Asia, Southern Africa, North America and Europe.  Conferencing differs from mediation in that it involves more parties in the process.  Not only are the primary victim and offender included, but so are secondary victims (such as family members or friends of the victim) as well as supporters of the offender (such as family members and friends).  These people are involved because they have also been affected in some way by the offense, and because they care about one of the primary participants.  They may also participate in carrying out the final agreement.  In addition, representatives of the criminal justice system may participate.

The conference has a facilitator who arranges for the meeting and makes sure that everyone present is able to participate fully.  The facilitator does not play a role in the substantive discussions.  Some forms of conferencing are "scripted", which means that the facilitator follows a prescribed pattern in guiding discussion by the participants.

Typically offenders will begin the discussion by explaining what happened and who they think was affected by their actions.  The victims then describe their experience and the harm that resulted.  The victims' supporters may speak next, followed by the offenders' families and supporters.

Together the group decides what the offender needs to do to repair the harm, and what assistance the offender will need in doing so.  The agreement is reduced to writing, signed and sent to the appropriate criminal justice officials.

Conferencing is used in multiple stages of the criminal justice process, but it has typically been used earlier than victim offender mediation.  In fact, conferencing is often used by police as an alternative to arrest and referral to the formal criminal justice process.  This has led to a unique linkage between restorative justice and the formal justice system.

c. Peacemaking Circles. Circles are similar to conferencing in that they expand participation beyond the primary victim and offender: their families and supporters may attend, as well as criminal justice personnel.  But in addition, any member of the community who has an interest in the case may come and participate.  So circles define "parties with a stake in the offense" most expansively.

Circles were adapted from First Nations practices in Canada, and they retain some of that flavor.  All the participants sit in a circle. Typically the offender begins with an explanation of what happened, and then everyone around the circle is given the opportunity to talk. The discussion moves from person to person around the circle, with anyone saying whatever they wish.  The conversation continues until everything that needs to be said has been said, and they come to resolution.

There is a "keeper of the circle" whose role, like that of the mediator and facilitator in the other two processes, is to ensure that the process is protected.  There is usually a "talking piece" as well, which may be a feather or some other object that has meaning to members of the circle.  The talking piece is passed around the circle, and only the person holding it is permitted to speak.

Circles are used at various stages of the justice process.  They are also used independent of criminal justice to address community or group problems that may not have risen to the level of criminal activity or which are not likely to lead to criminal charges.  Sometimes called healing circles or community circles, these may not include all the parties: healing circles, for example, may involve only the victim and the victim's supporters or the offender and the offender's supporters.

Circles developed in Canadian indigenous communities, and have been adapted for use in majority populations as well.  They can be found in both rural and urban settings in Canada and the United States.

d. Restitution and Community Service.  The three programmes I just mentioned are restorative processes.  They offer vehicles for willing parties to participate in determining what should happen after a crime.  Other programmes might be called potentially restorative outcomes because they can help implement agreements made in the course of restorative processes.  Two that are typically included in this category are restitution and community service.

Restitution is the offender paying back the victim for the harm caused. Restitution can be made through financial payments, by return or replacement of property, or by performing direct services for the victim.

Restitution can imposed on an unwilling offender at the conclusion of court proceedings.  In such a situation the "restorative" character of restitution will be limited to the reparation the victim receives -- which of course is beneficial in itself. However, under those circumstances the opportunities for explanation, expression of feelings, apology and other relational interactions are absent.  So restitution will have more restorative effect when it results from a restorative process.

This is also true of community service.  Community service involves the offender providing free service to the government or a charitable agency as part of the sentence.  Community service can be imposed, and the practice in many countries has been that the service required has minimal relationship to the offense or the harm it caused.  When used that way, it is little more than a retributive sanction with minimal if any restorative impact.

However, even imposed community service can have restorative effect if the service is carefully arranged so that the work relates to the harm caused and the party that benefits is related in some way to the victim.  For example, the Netherlands' HALT programmehas used community service orders with offenders guilty of writing graffiti in public places.  When the community service involves removing graffiti, there is a clear link between the service and the harm that led to it.

Furthermore, community service programmes in Africa have included elements of customary justice processes and extensive community involvement.  The more that community service includes elements of restorative processes, the more restorative it will be as an outcome.

Expansion of Restorative Justice

Restorative justice has become a world-wide movement.  In many countries it is one of several competing approaches to crime and justice that are regularly considered in courts and legislatures.  With this ecpansion has come adaptiation and innovation.  While any list is incomplete, I would like to highlight some illustrative developments.

1.  Victim-offender encounters are taking place in prison in the US, Canada, England, Belgium, the Netherlands and other countries.  In some instances this involves victims meeting with their offenders in a kind of “post sentencing mediation.” In other instances the meetings involve groups of unrelated victims and offenders.  This is done with sexual assault victims and offenders in Canada and England, and with offenders and victims whose crimes ranged from property offenses to homicide in a programme Prison Fellowship International has tested in New Zealand, England and the US.

The purpose of these meetings is to help each group in their healing process by giving them the opportunity to ask and answer questions they might never have been otherwise able to address.  In some instances this is necessary because the actual victim or offender is unknown or unavailable.  In other instances it may be a preparatory step toward a meeting of the person with their own victim or offender.

2.  Circles of support in Canada work with serious sexual offenders (often guilty of paedophilia) who are being released into fearful communities at the conclusion of their sentences. The circles are formed by members from faith communities who enter into a "covenant" with the released offender relating to accountability and support.  The programmeincreases public safety by holding the offender accountable to a reintegration plan through regular monitoring and notification of the police when necessary, and by ensuring that any community resources the offender needs are made available.  It also works to secure the safety of the offender by offering a forum for community members to voice their concerns, by intervening with community members when necessary, and by working with the police and other authorities to provide protection and services as needed.

3.  Mediation and conferencing are now being done within the justice process. They are run by police prior to charge in the Wagga Wagga model of conferencing in Australia, the Thames Valley project in England, and the Leuven mediation project in Belgium.  They are run by probation officers in Austria and the Czech Republic. Parole officers in Canada occasionally use them.  All this is in addition to the rich tradition of community-based mediation programmes that seem to be more prevalent in common law traditions.

This usage raises some theoretical and practical issues.  Can an official in the criminal justice system – with its coercive powers – adopt the neutral and supportive role of a victim offender reconciliation/mediation facilitator, conference facilitator, or circle keeper?  In some instances -- and with the right selection and training of facilitators -- it appears to be possible.

4. Restorative processes are being used to resolve conflict between citizens and their governments.  Fresno, California has used a form of dispute resolution to deal with allegations of police brutality.  Thames Valley is developing a similar programme to deal with citizen complaints against the police.  Bishop Desmund Tutu has described the Truth and Reconciliation Commission in South Africa as an expression of restorative justice.  New Zealand has appointed a tribunal to provide redress for violations of the Treaty of Waitangi in 1840 between the Queen and the (indigenous) Maori chiefs.  This process, which has resulted in several very large financial settlements from the government to particular tribes, has been characterised by steps which go far beyond negotiation of restitution to attempts – by all accounts impressive steps – at cultural reconciliation.

5.  Legislative action is being taken in a number of countries to expand use of restorative programmes.  A survey of these statutes reveals several purposes for such legislation. One is to reduce legal or systemic barriers to the use of restorative programmes.¹⁰ Another is to create a legal inducement for using restorative programmes.¹¹  A third is to guide and structure restorative programmes.¹²  A fourth purpose is to protect the rights of offenders and victims.¹³

6.  Funding and staff for programmes is expanding.  In most jurisdictions, restorative programmes start out as a model or pilot program, usually funded on a short-term basis for purposes of testing the effectiveness of the program.  Although the programmemay be successful, it will remain marginalised by inadequate funding unless it receives a steady and substantial infusion of funds.  As the number of restorative programmes is increasing around the world, governments are providing more resources, either in the form of paid staff persons or by offering grants to local governments.  Canada, the US and England are examples of countries that have put substantial resources into developing restorative programmes.

7. Intergovernmental bodies are taking note of restorative justice.  One result of the expanding acceptance of restorative justice is that it is increasingly appearing in debate and discussion at the international level. Last year the Committee of Ministers of the Council of Europe adopted a recommendation on the use of mediation in penal matters.  The European Union has funded creation of the European Forum on Victim Offender Mediation and Restorative Justice, whose purpose is to exchange knowledge and experience, to consider mutual co-operation, and to conduct international, comparative research in mediation.

Even the Rome Statute for an International Criminal Court contains a number of arguably restorative provisions, including creation of a victim and witness unit, authority for the Court to hear and consider the personal interests of victims when appropriate, a mandate to establish principles relating to restitution and other reparation to victims, and a mandate to establish a trust fund for the benefits of crime victims and their families.  (It should be noted that some explicitly restorative features were also considered and rejected, with the most troubling being the exclusion of restitution among the list of penalties that might be imposed by the ICC.  It is unclear why the Court should establish principles relating to restitution and other reparation to victims when those are not available as sanctions.)

Finally, this Tenth UN Congress on the Prevention of Crime and Treatment of Offenders has "fairness to victims and offenders" as one of its four substantive topics, and the discussion guide makes clear that this includes restorative justice. This UN interest in restorative justice is not new.  The UN’s International Handbook on Justice for Victims notes that “the framework for restorative justice involves the offender, the victim, and the entire community in efforts to create a balanced approach that is offender-directed and, at the same time, victim-centred.  Victim compensation has become a key feature of restorative justice in many developed countries.”

Just last year ECOSOC adopted a resolution encouraging member states to use mediation and restorative justice in appropriate cases, and called on the Commission on Crime Prevention and Criminal Justice to consider development of guidelines on the use of those programmes.

During the course of this Congress, and during the meeting of the Commission on Crime Prevention and Criminal Justice that follows it, Basic Principles on the Use of Restorative Justice will be debated for adoption.  These Basic Principles are based on work done by a Working Party on Restorative Justice created five years ago by the New York NGO Alliance on Crime Prevention and Treatment of Offenders.

[1] Howard Zehr, Changing Lenses: A New focus for Crime and Justice, Herald Press, Scottdale, Pennsylvania, 1990, p. 181.

[2] Ibid.

[3] Ibid, pp 158-174.

[4] Michael Tonry, "The Fragmentaition of Sentencing and Corrections in America," a paper from the Executive Sessions on Sentencing and Corrections, (National Institute of Justice:  Washington DC), September 1999, p.1.

[5] p. 3.

[6] p. 4.

[7]

[8] The following is adapted from Susan Sharpe, Restorative Justice: A Vision for Healing and Change, (Edmonton, Alberta: Edmonton Victim Offender Mediation Society, 1998), 7-12.

[9] Ruth Morris, A Practice Path to Transformative Justice (Toronto: Rittenhouse, 1994).

[10] For example, New Mexico legislation permitting use of indigenous concepts of law and justice in juvenile proceedings; or the use of Local Councils (formerly Resistance Councils) in Uganda.

[11] For example, the French “Measure of reparation” which establishes that reparation to the victim is to receive the same priority in juvenile justice as rehabilitation of the juvenile and Sri Lanka’s requirement of mediation efforts before filing certain criminal charges.

[12] For example, community corrections programmes in many states in the US.

[13] For example, the Czech Republic statute concerning settlement of a criminal case requires victim consent.