Introduction
Most of the traditional debate in the United States concerning the proper goal of the juvenile justice system has been between retribution and rehabilitation. Over the past decade, there has been a growing awareness of restorative justice as an appealing alternative. Instead of the state determining the proper punishment or course of rehabilitation for the offender, restorative justice seeks to bring the offender, victim, and interested community members together to find a response which provides some restitution and recognition to the victim, understanding and responsibility for the offender, and healing and reassurance to the community.
Several threads make up the restorative justice movement in the United States. They have common themes, with some differences in practice. Restorative justice programs are appearing in schools and the juvenile justice system to respond to offenses by youth, as well as in the adult criminal justice system (particularly for nonviolent offenses) and prisons. There is a growing body of evidence that the use of restorative justice has many positive effects, including empowerment of both victims and offenders, greater recompense and satisfaction for victims, more reintegration of offenders into schools and society, lower rates of recidivism, and reduced costs for the state both in adjudication and in enforcing judgments.
Restorative justice programs have generally developed incrementally out of community involvement and experience. Over the past ten years in the San Francisco Bay Area, where the author lives, there has been rapid increase in the number of programs seeking an alternative to the frustrations, costs and ineffectiveness of the current system’s response to juvenile delinquency. Growth may continue to be incremental and community-driven, but the opportunity for broader application with significant state support may arise when political conditions allow for a reexamination of the current approach.
Restorative justice has the potential of substantially altering the juvenile justice. There is a growing recognition of the effectiveness of these programs. While nationwide acceptance of restorative justice is in its infancy, and there are significant hurdles to be overcome, the author believes that the juvenile justice system and the society as a whole would benefit from the change.
What is Restorative Justice?
Restorative justice is a term describing several different movements that develop a response to aberrant behavior by having offenders, victims, and other interested community members meet together to hear one another’s concerns and form an agreement for an appropriate outcome. Whereas retributive justice focuses on determining guilt and applying appropriate punishment for violations of state laws, restorative justice is concerned with the broader relationship between the offender, the victim and the community.[1. Howard Zehr, Little Book of Restorative Justice, at 25 (2002).] In contrast to the rehabilitative model, which focuses on the needs to the offender without necessarily taking into account the consequences of the offense, the restorative approach gives priority to reparation, direct offender accountability to victims, and conflict resolution.[2. Bazemore & Umbreit, Rethinking the Sanctioning Function in Juvenile Court: Retributive or Restorative Responses to Youth Crime, 41 Crime & Delinquency 296, 297-98 (July 1995).]
The source and history of the restorative justice model is debated between those who focus on recent history and those who tie restorative justice approaches to hunter-gatherer and tribal societal responses to internal and external disputes.[3. See Mulligan, From Retribution to Repair; Juvenile Justice and the History of Restorative Justice, 31 U. La Verne L. Rev. 139 (2009).] It is beyond the scope of this article to delve into the details of that debate. Restorative justice principles are now applied in many countries throughout the world.[4. Umbreit & Armour, Restorative Justice and Dialogue: Impact, Opportunities, and Challenges in the Global Community, 36 Wash. U. J. L. & Policy 65, 69 (2011).] The United Nations adopted a proposal encouraging the use of restorative justice in the criminal justice systems of its member states and the development of standard and safeguards.[5. E.S.C. Res. 2002/12, U.N. Doc. E/2002/INF/2/Add.2 (Aug. 3, 2002).] As of 2001, at least 29 states in the United States have implemented some form of restorative justice program by statute.[6. Umbreit, Lightfoot & Fier, Legislative statutes on victim offender mediation: A national review, Center for Justice & Peacemaking, School of Social work, University of Minnesota, St. Paul (2003).] Nonetheless, the United States lags behind many countries in its implementation.[7. See, e.g., Katz & Bonham, Restorative Justice in Canada and the United States: A Comparative Analysis, 6 J. Inst. of Justice and Int’l Studies 187, 194 (2006).]
There is some disagreement about the core principles of the concept. There are some who insist upon theoretical consistency in the application of the term restorative justice, even while acknowledging the diversity in application.[8. Doolin, But What Does It Mean?, Seeking Definitional Clarity in Restorative Justice, 71 J. Crim. L. 427 (2006).] Among the core attributes are: the victim’s participation, empowerment and reparation; recognition by the offender and society that a harm has been committed; restoration of the offender’s sense of belonging to the community; community participation in determining the appropriate response to the particular harm; and recognition and affirmation of the needs and obligations of the victim and offender. It may include coercive elements inherent in the criminal justice system, and may operate effectively even if not all of the elements above are met.[9. Doolin, supra at 440.]
While there are many social forces that contribute to the growing openness in the United States to restorative justice models,[10. Bazemore & Umbreit, supra at 302.] there are three significant models currently being practiced that have different sources: victim-offender mediation, family group conferencing, and restorative or peacemaking circles.[11. Bradshaw & Roseborough, Restorative Justice Dialogue: The Impact of Mediation and Conferencing on Juvenile Recidivism, 69 Fed. Probation 15 (2003).] All have as a predicate that the offender admits the underlying conduct, so that the focus of the process is on what should happen next.
Victim offender mediation applies traditional concepts of mediation in the criminal context, and may be the most established, with 1300 programs in 18 countries.[12. Umbreit & Greenwood, National Survey of Victim Offender Mediation Programs in the United States, 16 Mediation Quarterly 235, 251 (1999).] A facilitator meets with the victim and offender, either together or separately, to help them come to an agreement on restitution. Unlike other forms of mediation in the context of civil disputes, in this forum, guilt has been admitted by the offender and there is no expectation that the victims should compromise on what they need to address their losses.[13. Bradshow & Umbreit, Crime victims meet juvenile offenders: contributing factors to victim satisfaction with mediated dialogue, 49 Juv. & Fam. Ct. J. 17, 18 (1998).] A mediator will usually initially meet with the participants separately to discuss the process and understand their perspectives. At the meeting, usually beginning with the victim, the participants will discuss the events and how they were affected. Both the victim and the offender have the time to explain their own views so that there is a human connection. They then focus on the victim’s losses and negotiate a restitution agreement. These sessions last about one hour.[14. Bradshow & Umbreit, supra at 20.]
Conferencing developed in New Zealand as an alternative to Youth Court, inspired by the traditional practice of the Maori, the indigenous population, and was instituted widely following legislation passed in 1989.[15. Daly & Hayes, Conferencing in Australia and New Zealand: Variations, Research, Findings and Prospects, reprinted in Restorative Justice for Juveniles: Conferencing, Mediation and Circles (Morris & Maxwell, eds, 2001), at 59, 61-62.] There can be a wide variety in the nature, participants and purpose of conferencing.[16. McCold, Primary Restorative Justice Practices, reprinted in Restorative Justice for Juveniles: Conferencing, Mediation and Circles (Morris & Maxwell, eds, 2001), at 41, 44-48; Hillian, Reitsma-Street & Hackler, Conferencing in the Youth Criminal Justice Act of Canada: Policy Developments in British Columbia, 46 Canad. J. Criminology & Crim. Justice 343, 347-50 (2004).] Conferencing is a generic term for a group reconciliation process facilitated by a neutral third party with the goal of reaching consensus; typically it involves the victim with family and/or friends, the offender with family and/or friends, and community representatives.[17. Walker, Conferencing – A New Approach for Juvenile Justice in Honolulu, 66 Fed. Probation 38, 39 (2002).] Many conferencing programs use a script for consistency and to prevent the facilitator from taking too much control.[18. McCold, supra at 44-48.] One model has the facilitator introduce and set a tone for the process, followed by the offender describing his or her conduct and taking responsibility for the offense, with other participants then asking questions. Other participants then discuss how they have been affected by the offender’s behavior, and the group discusses how the harm can be repaired and seeks to find consensus on a written agreement that everyone signs. The conference ends with the participants eating together, a breaking of bread that ceremonializes reintegration of the offender, healing of the community, and closure of the process.[19. Walker, supra at 39.]
Restorative Circles were developed by Dominic Barter working with favela residents in urban Brazil in the mid-1990’s trying to reduce violence and restore community. The core of Barter’s approach is to move towards the conflict and through dialogue to understand it.[20. Lyubansky & Barter, A Restorative Approach to Interpersonal Racial Conflict, 23 Peace Review: A Journal of Social Justice, 37, 39-40 (2011).] A related process, called simply Circles, has its roots in the First Nations practices in Canada; in this version the offender usually speaks first.[21. Van Ness, Justice that Restores: From Impersonal to Personal Justice, reprinted in Criminal Justice: Retribution vs. Restoration (Judah & Bryant, eds. 2004), at 93, 98.] In the Brazilian model, local people are trained as facilitators and often come from the community involved.[22. Lyubansky & Barter, supra at 42.] The participants can address not only the specific act that created the conflict, but also the larger social context. They may focus less on the conduct of the offender and of the victim where the incident reflects a community-wide problem rather than a self-involved personal act; in these circumstances, the circle creates a setting in which the wider problem can be discussed by the community.[23. Lyuyansky & Barter, supra at 41-43.]
One of the significant characteristics in all these manifestations of restorative justice is the localized focus. The harm is discussed and addressed by the offender, victim and others in the community, and is not decided solely (and sometimes not at all) by representatives of the state. This reorientation from the impersonal to the personal has a significant effect. While a state-centered process will emphasize the enforcement of standard rules of behavior and will seek some consistency in its application, restorative justice processes will emphasize the relationship of the participants focusing on the local community rather than a more abstract polity.[24. Van Ness, supra at 102-04.]
Restorative Justice in Practice in the Juvenile Justice System
There are variations among the different restorative justice strains, and also by jurisdiction and for practical reasons.[25. For example, a juvenile offender program in Marin County, California, grounded on restorative circles and accordingly by design involving community participation, often proceeds with the facilitator, the victim and the offender, and sometimes parents but without a probation officer or other representative of the government because of scheduling difficulties. Interview with Marissa Wertheimer, Restorative Circles Coordinator, Marin County government, May 7, 2013.] Rather than amplifying the differences, I will describe the core attributes of a typical application of these programs in a juvenile setting.
In many instances, the local government body or a community organization sometimes funded by the government will create an office to coordinate the restorative justice program. The coordinator will be referred cases by various sources, including local schools, the probation department, the police department,[26. In the United States, with some variations, the probation department of a local government district has a variety of duties, including evaluating and recommending appropriate sentences for adult offenders, monitoring the treatment of juvenile offenders when they are out of custody, and supervising adult offenders after they are released on parole. They work closely with the prosecuting officials, the court and the police in these roles.] and offices of the prosecutor. These referral sources often have standardized criteria set by the authorities on whether a case is appropriate.
Restorative justice programs for juveniles usually involve diversion, where the matter is redirected or removed from the criminal justice system. Unlike more familiar diversions, the underlying offense may be more serious and the offenders’ responsibilities are often more onerous.
After referral, the coordinator will meet with the interested parties, including the victim and where appropriate the victim’s family, the offender and the offender’s family, representatives of any institutions or community organizations affected, such as schools or the probation department, and others. The coordinator explains the program, both how it works in practice and what its purposes are, to obtain the parties’ consent and willing participation, and to prepare for a productive session.
Once the parties are gathered together, there is often a designed order of presentation. In some models, the process with begin with the victim describing what happened and how it affected them, with their family and supporters possibly adding greater detail and depth. A representative of the community, from the school or probation department or others, may discuss how the offense harmed community interests more broadly. The offender then describes how the offense occurred, what the circumstances surrounding it were, and other information the offender believes is important to understand what happened. Members of the victim’s family may also provide background and understanding.
In other models, the order of speakers may vary: the offender will begin by acknowledging the act and the harm. There are those who prefer this approach because it removes that element of concern for the victim: that the offender has not accepted responsibility.[27. Walker, supra at 39.] In either case, each of the participants will have the opportunity to discuss the circumstances and impact of the offense.
The discussion may continue on an extended basis, or may be more focused. Generally, the goal is to develop a specific plan of action so that the offender knows exactly what must be done and there is little ambiguity about whether it has been performed.[28. A program coordinator describes working towards a written plan of action that is both “doable and measureable.” Interview with Marissa Wertheimer, Restorative Circles Coordinator, Marin County government, May 7, 2013.]
This same process can be adjusted to work in situations when the offender and victim cannot or are not in the appropriate condition to meet directly.[29. Pranis, The Practice and Efficacy of Restorative Justice, reprinted in Criminal Justice: Retribution vs. Restoration (Judah & Bryant, eds. 2004), at 133, 144] There are a number of creative ways this is done: the victim and offender can be in different rooms; the victim and offender of different crimes can meet; and professionals can work with one or the other to try to accomplish the same goals. Even in these settings, victims can receive restitution from the offender or from community funds and their other damages can be acknowledged and sometimes addressed. Offenders can still be confronted with the harm they have done (if less directly than from the victim), can recognize their responsibility, and can attempt to make amends through restitution and community service.[30. Pranis, supra at 144-46.]
Usually, once the offender completes the agreed-upon restitution and reparations, there are no further court proceedings. The matter is dropped and the offender has no record of a conviction.
Advantages of Restorative Justice
There is a great deal of discussion in the literature about the benefits of using the restorative justice model, although a substantial portion of it does not apply social science techniques to the study. It is useful, then, to distinguish between objective, measurable results and more subjective, experiential benefits that may be real but are difficult to substantiate and to predict their ultimate societal value.[31. There are those who argue for a broader evaluative vision for restorative justice than can be derived solely from data, including recognizing the value of developing of community-based processes and of finding consistency between the philosophical underpinnings of restorative justice and its practice and effect. See, e.g., Pranis, supra at 149-52.]
a. Objective Benefits
The body of evidence supporting the effectiveness of restorative justice programs is plentiful if somewhat scattered. Some of the studies focus on one or other of the processes discussed above, and others are more generic.
There is a substantial body of evidence detailing the effectiveness of victim-offender mediation programs in terms of client satisfaction, sense of fairness, effective restitution, reduced recidivism and less severity of crimes committed by those reoffending (with some inconsistent results), and reduction in per case handling costs.[32. Bradshaw & Umbreit, supra at 30-33.]
In 1989, New Zealand instituted a broad reorganization of its juvenile justice system to require programs like mediation and family group conferencing; since then, the vast majority of such cases are handled by conferencing, not courts, resulting in a significant reduction in court cases and incarceration and without increased recidivism.[33. Umbreit & Armour, supra at 76.] Studies in New Zealand and Australia show dramatic reductions in juvenile court case loads following the institution of conferencing in the juvenile justice system, in New Zealand by 80% after it was introduced.[34. Umbreit & Armour, supra at 81.] One study in Hawaii showed high rates of compliance with the agreements resulting from conferencing sessions, and some reduction in recidivism and a greater reduction in new violent offenses.[35. Walker, supra at 41.]
A study on the effects of restorative circles in Sao Paolo found 93 percent satisfaction rates among participants and, in one school district, 98 percent reduction of police school visits after restorative circle program was adopted district-wide in 2009.[36. Gilinson, Horne & Baeck, Radical Efficiency: Different, better and lower cost public services, National Endowment for Science, Technology and the Arts (NESTA 2010) research paper, at 42.] The same study found cost savings of 50% comparing the effect ts of restorative circles to criminal behavior to the prior response.[37. Gilinson, Horne & Baeck, supra at 8.]
One article performed a meta-analysis of other studies. It found victims who participated in restorative justice processes were significantly more satisfied with the experience, and the offenders successfully completed their restitution agreement significantly more often, than in the comparison groups who did not participate in these programs.[38. Latimer, Dowden & Muise, The Effectiveness of Restorative Justice Practices: A Meta-Analysis, 85 The Prison J. 127, 136-37 (2005).] There was also a measurable improvement in reducing recidivism rates.[39. Latimer, Dowden & Muise, supra at 137.] Similarly, an article examining the results of 63 studies found that the application of restorative justice practices led to substantially greater satisfaction among victims, increased likelihood that restitution contracts would be fulfilled, and reduced recidivism.[40. Umbreit, Coates & Vos, The Impact of Restorative Justice Conferencing: A Review of 63 Empirical Studies in 5 Countries, Univ. of Minn. Center for Restorative Justice and Peacemaking (2002) (available at http://www.cehd.umn.edu/ssw/rjp/resources/rj_dialogue_resources/Restorative_Group_Conferencing/Impact_RJC_Review_63_Studies.pdf). The same authors wrote another broad summary of the evidence in Umbreit, Vos, Coates & Lightfood, Restorative Justice in the Twenty-First Century: A Social Movement Full of Opportunities and Pitfalls, 89 Marquette L. Rev. 251 (2005).] The same study found support for cost savings where the restorative justice program was used as a true alternative to the standard operating procedure of the criminal justice system.[41. Umbreit, Coates & Vos, supra at 11-12.]
The benefits can be shown indirectly but concretely by examining the effect of restorative justice programs. There is substantial evidence that the use of restorative justice principles in schools to deal with conduct that previously resulted in suspensions and expulsions has greatly reduced such offenses from reoccurring.[42. Gonzalez, Keeping Kids in Schools: Restorative Justice, Punitive discipline, and the School to Prison Pipeline, 41 J. Law & Education 281, 305-06 (2012)(the cited pages concern one program in Oakland, California; the later text details results from many other school districts throughout the United States).] A long-standing agency in Santa Rosa, north of San Francisco, called Restorative Resources, has programs in schools and connected to the courts. It self-reports on the results of over 1000 cases of juvenile and adult offenders involving the probation department a 6% rate of repeat offense, 94% victim satisfaction rate and 98% law enforcement satisfaction rate.[43. Restorative Resources website, http://www.restorativeresources.org/.]
The growth of these programs in schools has been partially in response to the failure of more punitive approaches arising from “zero tolerance” policies, which have both failed to improve school safety and increased the number of juveniles taken into the criminal justice system and incarceration.[44. Gonzalez, supra at 282-83, 292-94.] Thus, restorative justice programs may not only reduce recidivism among current offenders, but applied in schools may reduce the number of juveniles who have any contact with the criminal justice system.
While the aggregation of this evidence is impressive, and this is by no means a complete list, there is more to be done in quantifying and demonstrating the benefits in a scientific way. There are some challenges to doing so, in particular in finding in the real world appropriate control groups to compare to study groups, and in determining whether the various applications of restorative justice programs are applied consistently enough to be comparable.[45. Walgrave, Investigating the Potentials of Restorative Justice, 36 Wash. U. J. Law & Policy 91, 109-13 (2011).] To the extent there is political resistance to the expansion in use of restorative justice, a better and more consolidated statement of the supporting evidence may be helpful.
b. Subjective benefits
Some have asserted that restorative justice “includes a supposition that restorative outcomes have a transformative dimension: transforming victims into survivors, conflict into cooperation, shame into pride, and individuals into community.”[46. McCold and Wachtel, Restorative Justice Theory Validation, reprinted in Weitekamp & Kerner (eds.), Restorative Justice: Theoretical Foundations (2002), at 117.] Similarly, there is a type of mediation termed transformative mediation that focuses the mediator’s attention not on resolving the particular dispute but on encouraging and directing the participants in communicating directly with one another to resolve their dispute themselves.[47. Folger & Bush, Transformative Mediation and Third-Party Intervention: Ten Hallmarks of a Transformative Approach to Practice, 13 Mediation Quarterly 263, 269-71 (Summer 1996).] In either case, the benefit is not only resolving the current dispute but also changing the perspectives and experience of the participants to enable a better and more productive response to disputes in the future and increase the likelihood that they can reach resolution without outside intervention should a problem arise again.
There are some very moving tales from participants in restorative justice processes, even in the most horrendous of crimes among adults. A woman whose youngest daughter was kidnapped during a camping trip and subsequently murdered has written about the effect on her of speaking to the perpetrator and seeking to forgive him.[48. Jaeger, From Fury to Forgiveness, reprinted in Criminal Justice: Retribution vs. Restoration (Judah & Bryant eds. 2004), at 159.] She discusses the significance in her life of being able to move past the rage and despair created by her loss. In less striking circumstances, there are substantial numbers of victims who report feeling satisfaction in being heard for their loss, seeing the offender acknowledge the harm, and participating in formulating an appropriate redress for the harm.[49. See generally Bradshow & Umbreit, supra at 18.]
Offenders too can be deeply moved and changed by the experience. A man convicted of felony sexual assault in Texas had spent over 25 years in prison when he met the victim of his crime through a prison “victim-offender dialogue” program in the prison. He subsequently wrote about the effect on his efforts to restore his own life despite his surroundings.[50. Johnson, From Destruction to Reconciliation: The Potential of Restorative Justice, reprinted in Criminal Justice: Retribution vs. Restoration (Judah & Bryant eds. 2004), at 83.] In order to open himself to his victim, he was forced to confront “the darkest truths” about himself.[51. Johnson, supra at 84.] Not only was he able to continue his journey to personal regeneration, but his victim too expressed her forgiveness of him (not of his act) and how this had helped her get beyond her aggravation and anger and begin her own healing.
The societal benefits may be difficult to measure. Certainly the satisfaction with the process expressed by many participants is likely to reduce the resentments of both the victim and the offender, which will have an ongoing effect on their lives. The greater skills engendered by the process for the participants to express directly how they have been harmed or their remorse have an ongoing benefit in many other conflicts that will arise in their lives. The satisfaction and increased trust arising from the completion of the commitments made during a restorative justice meeting will empower those to believe that they can accomplish concrete and beneficial results even in very trying circumstances.
In a broader context, restorative justice empowers the community by involving it in formulating the response to a crime. Where a particular event impacts concerns beyond the victim-offender dispute, the community’s participation makes it more likely the response will benefit and restore the community beyond the individuals involved. As discussed below, simply having offenders remain in and connected to the community has many advantages.
To some degree, the subjective benefits of restorative justice will be perceived or not believed based on the perspectives of the viewers. The significant emotional content to these experiences is not easily measured and its future effect is not readily predictable. While there are many powerful anecdotes attesting to the benefits upon those who have committed or suffered even the most horrible crimes, these can be endorsed or dismissed depending on the predispositions of the viewers. This is one of the challenges to expanding the use of restorative justice through state- or nation-wide legislation as opposed to local or community-based action.
Resistance to Applying Restorative Justice
Historically, the debate and the behavioral pendulum in the juvenile justice system has been between the rehabilitative and retributive approaches to the offender. The retributive model seeks to punish the wrongdoer and deter others. The rehabilitative model seeks to heal the wrongdoer so he does not offend again. Both approaches focus their attention on the offender.
The restorative justice model reflects broader concerns, including the victim and the community. When advocates of a retributive response to crime focus on the treatment of the offender, they can often conclude that the offender is let off lightly. Whereas a thief in a retributive system would pay his debt to society by doing time in jail and perhaps paying some amount in restitution to the victim, in the restorative model the victim and the offender may agree on a restitution plan and some other service by the offender, but the degree of punishment will appear light in comparison to jail time.
This context is significant in evaluating the likelihood that the use of restorative justice will expand in the United States, and how it is most likely to do so. Its current slow expansion is by gradual accretion. There is no powerful constituency for such reform. Politically, the two major parties have both established themselves as “law and order” (i.e. retributive model) advocates, the Republicans because that has been their traditional position and responds to their supporters, and the Democrats because they have suffered in many elections for being “soft on crime.”[52. Deeply planted in the psyche of the political class in the United States is the “Willie Horton” ad used to attack Democratic candidate for president Michael Dukakis in 1988. The ad used the story of a convicted murdered serving a life sentence without the possibility of parole who was released on a furlough program under then-Governor Dukakis, did not return, and later committed assault, armed robbery and rape.]
An additional challenge for those arguing for change in the United States is the limited degree in which fact-based arguments hold sway in disputes about the best approach to criminal justice. The moral and sometimes religious components of the subject strongly influence the discussion to the point where mere statistical evidence or demonstrable cost-savings are unpersuasive. This is not to say that the aggregation of such evidence is not important, it is only to say that such evidence is not enough. It must also be recognized that many of the more amorphous or subjective claims of benefits and cost-savings may be disregarded in a political debate as soft-hearted, unproven wishful-thinking.
The political challenge facing anyone seeking to expand the use of restorative justice is to distinguish the concept from rehabilitation. Rehabilitative programs focus on the victim and attempt to find ways to heal that which causes their aberrant behavior. Whether it be education, counseling, or mental and physical health services, it is often perceived that offenders who are poor receive better services and more positive attention in a rehabilitative environment than poor people who are law abiding. Moreover, in the rehabilitative model, the victim’s concerns are of little import since the focus is on the offender, who is treated in a broader context than the particular act that caused the arrest. The victim’s connection to the offender may be considered too narrow a circumstance to be significant to rehabilitation.
While these perceptions may exaggerate reality, and probably do a disservice to the application of the rehabilitative model in practice, they are a significant cultural presence that must be recognized when advocating for the expanded use of restorative justice. The most powerful argument is one that distinguishes between restorative justice and rehabilitation. Restorative justice is different in several significant ways that should be viewed favorably by law and order advocates, in addition to the objective and subjective benefits discussed in the prior section.
First, the offender must recognize the harm he or she has caused, and must confront the victim or someone standing in for the victim. These are real experiences and significant burdens. Moreover, the offender must participate in determining the appropriate restitution and other recompense for the transgression. The offender cannot blame an all-powerful state for imposing a disproportionate or unjustified punishment, he must join with the victim in devising his own “sentence,” to which he must agree and which he must fulfill. There are some who argue that this requires more of the offender than a more punitive, state-driven approach wherein the offender may himself feel victimized.
Second, the victim has a central place in the process. In the rehabilitative model, and to some degree in the retributive model as well, the victim is largely a bystander to the decision making of what should happen to the offender. In the restorative justice model the victim participates directly and the victim’s losses are central to the discussion. The satisfaction of the victims can be an effective political argument both because the disregard for the victims is one of the standard attacks on the rehabilitative model and because it focuses attention away from the consequence to the offender.
Third, there is a growing constituency that is becoming aware of the costs of incarceration, not only in payment for warehousing convicts but also in the damage done by removing prisoners from the community. The high cost of keeping so many people in custody is well known. Less often appreciated are the indirect costs. Those who are removed from the community must reintegrate upon release, a challenging prospect, while one of the goals of restorative justice is to heal the community damage caused by the offence immediately and to keep the offender within the community. The disruption to high-offender-rate communities is staggering. There are some blocks in urban America where one out of eight parenting-age men are admitted to jail or prison each year.[53. Travis, Building from the Ground Up: Strategies for Creating Safe and Just Communities, reprinted in Criminal Justice: Retribution vs. Restoration (Judah & Bryant, eds. 2004), at 173, 188.] Children in that environment grow up with the expectation that a high percentage of the males will be removed from the community to go to jail or prison. Juvenile males are removed at a time when they should be in school or learning a trade. Girls see that they must be prepared to raise children by themselves. The long-term effects of this dynamic are apparent.
Fourth, restorative justice enhances the community’s ability to respond to problems within itself. There is a growing body of evidence that the removal of large numbers of people can reach a tipping point where the community’s ability to police itself is so weakened that crime rates actually rise.[54. Travis, supra at 189-90.] This contrasts sharply with the restorative justice model in which the community participates in responding to the offense and in developing the appropriate response to it. The harm to the community can be redressed as part of the offender’s agreement to make recompense. The offender need not be removed from the community; instead, the bonds between the offender (and the victim) and the community are strengthened.
Long-term Prospects
There is some reason for optimism. As discussed above, there is a growing application of restorative justice programs in the United States. Over time, the utility and success of these programs will create their own momentum for expansion.
For example, in Oakland, California, where the author lives, a number of juvenile restorative justice programs have developed over the past ten years and their impact is expanding. Beginning in 2007, a largely school-based program started in 2005, Restorative Justice for Oakland Youth (RJOY),[55. See RJOY website: http://www.rjoyoakland.org/about.php.] made presentations to stakeholders in the Oakland juvenile justice system that led to the creation of a task force and a three-year strategic plan for the expanded training in and use of restorative justice.[56. Alameda County Restorative Juvenile Justice Strategic Plan, at 3, available at http://www.ousd.k12.ca.us/cms/lib07/ca01001176/centricity/domain/88/RJ_Strategic_Plan_4_8_09.pdf#page=3&zoom=auto,0,601.] This has led to expanded use of programs in the local courts. In one such program, the National Council on Crime and Delinquency’s Restorative Justice Project has developed a diversion program based on restorative justice principles that diverts mid-range and more serious juvenile crimes traditionally ineligible for diversion.[57. Details of this program are available on the group’s website: http://nccdglobal.org/what-we-do/restorative-justice-project.] This group has now been funded to create a similar program in nearby San Francisco.[58. See note 56.] The Oakland police department and district attorney’s office, in conjunction with RJOY and Catholic Charities, developed a diversion program for first time offenders through the McCullum Youth Court.[59. See Oakland City Government website: http://www2.oaklandnet.com/Government/o/OPD/DOWD004947.] When successful, such programs engender new applications.[60. For example, the success of RJOY’s restorative justice work in the Oakland Unified School District led the Fresno Unified School District (in south-central California) to look at replicating the program in Fresno. See article in Fresno Bee, Nov. 23, 2012 (available at http://newamericamedia.org/2012/11/amidst-soaring-dropout-rates-fresno-schools-look-to-oakland-for-restorative-justice-model.php.]
In Marin County, California, adjacent to San Francisco, the application of restorative justice programs in the schools and in Youth Court was examined by the civil grand jury.[61. In California, in addition to criminal duties, grand juries may be convened for civil concerns, such as investigations of wrongdoing by public officials or other matters of public concern. See California Penal Code §888.] The grand jury report concluded that the use of restorative justice should be expanded:
The Marin County Civil Grand Jury’s study of the techniques involved and the success of restorative justice practice in both Marin County and in other communities leads the Jury to the conclusion that there are opportunities for meaningful expansion of restorative justice in the county, resulting in substantial financial savings and social benefits. The Jury recommended a broader application of the use of restorative justice in schools, in neighborhood and community settings, and in the adult and juvenile justice systems.[62. 2011-2012 Marin County Civil Grand Jury: Restorative Justice: Its Time Has Come in Marin County, (June 4, 2012), at 1 (the report may be found from the Marin County Civil Grand Jury website at http://www.marincounty.org/depts/gj/reports-and-responses?tabnum=1). The report summarizes the programs in Marin County and elsewhere, describes their processes, reports on the effects of those programs, and examines expanding such programs into other applications in the county.]
It is striking that so little of this progress has occurred with direct government involvement. The federal government has provided some support for training and funded block grants that states may use for restorative justice programs in their juvenile justice systems,[63. Juvenile Accountability Block Grants, 42 U.S.C. §3796ee(b)(14).] and a few states (notably Vermont) have mandated restorative justice programs in certain areas. But most states have permitted the development of restorative justice programs without providing significant support. As a result, much of the progress has been generated by local governmental agencies (judiciary, probation departments, victims’ services), nonprofits and community organizations.[64. Pranis, supra at 151. An example of how this happens is SEEDS, an organization in Berkeley, California (adjacent to Oakland), which began as a community-based conflict resolution non-profit beginning in 1983 which in 2007 was renamed as SEEDS; thereafter it began offering restorative justice training and programs alongside its more traditional mediation services. See SEEDS website: http://www.seedscrc.org/who-we-are/history/.] Where governments have considered more systematic change in the justice system in recent years, restorative justice has been one of the initiatives supported.[65. Umbreit & Armour, supra at 67-68.] But it is instructive that the state that has implemented the most restorative justice programs through statewide action, Vermont, is a small state not subject to the same political dynamic as much of the rest of the United States.
In California, the legislature has made a finding favoring community-based corrections programs, including “restorative justice programs such as mandatory victim restitution and victim-offender reconciliation.”[66. California Penal Code §17.5(8)(E)(added 2011).] A proposed law to expand the use of restorative justice protocols in juvenile courts has been repeatedly introduced in the legislature since 2005 but not passed.[67. See, e.g., A.B. 446 (2011-12 legislative session)(This bill would provide that the “restorative justice program shall be implemented through a restorative justice protocol developed by the juvenile court in conjunction with the prosecutor, public defender, probation department, representatives from victims’ groups, law enforcement, community organizations and service providers, restorative justice groups, and clinicians with expertise in adolescent development.”), full text available at http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0401-0450/ab_446_cfa_20110628_100958_sen_comm.html).]
As long as it is effective, restorative justice will continue to grow out of communities’ desire for a better response to the problems created by juvenile and other criminal and damaging behavior. There may come a time when political circumstances permit a wider governmental commitment. When that time comes, advocates for expanded use of restorative justice will benefit from more organized data supporting its advantages. Meanwhile, as it expands incrementally it will be important that the programs be implemented correctly. The failure of a few sloppily run programs can be used to undermine the cause of a reform that has the potential of significantly improving the response to juvenile crime. If its use continues to expand, victims, offenders and the society as a whole are all likely to benefit.
Notes
