Antecedents to Restorative Justice

Although the restorative justice movement is often portrayed as either on the fringe of legal practice or as setting a new direction, the principles and practices of restorative justice, although not named as such, were the dominant model of criminal justice in Western countries before the eleventh century and embedded in numerous indigenous cultures from throughout the world (see Figure 1.1).

FIGURE 1.1

Within the English-speaking world, roots of the prevailing focus on crime as a violation to the state can be traced back to eleventh century England when crime was viewed as a violation of one person by another with a focus on harmful consequences and liability to repair damage. Following the Norman invasion of Britain, a major paradigm shift occurred in which there was a turning away from the well-established understanding of crime as a victim-offender conflict within the context of community. William the Conqueror’s son, Henry I, issued a decree securing royal jurisdiction over certain offenses (robbery, arson, murder, theft, and other violent crimes) against the King’s peace. This decree established that the fines that had been paid by offenders to their victims would now be paid to the state in the person of the king. These fines served a useful purpose because they became a revenue-generating system that supplemented unpopular taxes (Johnstone, 2002). The shift from the victim’s right to restitution also pulled away the community’s controls, including its ability to give offenders a sense of the magnitude of the harm and the opportunity to redeem themselves by repairing that harm.

Restorative justice values, principles, and practices also hearken back to numerous indigenous cultures from throughout the world. Many of these cultures are built on a deep understanding that all things are interconnected through relationships. When a violation occurs, it breaks the connections, thereby throwing the entire community into disharmony with itself. The first priority is the restoration of relationships between community members.

Navajo peacemaker courts use a respected community leader to bring together interested parties to resolve the dispute (Yazzie & Zion, 1996). The process is guided, in part, by a tradition that disallows the imposition of a decision on another. Consequently, the offender must voluntarily agree to participate and make things right in order for justice to proceed. Aboriginal/First Nations peoples of Canada employ elements of customary law and traditional practices in response to wrongdoing. Peacemaking and sentencing circles are used in Canada and among Native Americans and others in numerous communities in the United States. The Hollow Water First Nation community used a 13-step community-based process to address the harm from longstanding sexual abuse (Griffiths & Hamilton, 1996). This initiative included rituals reflecting traditional culture, involved community elders, and maintained a focus on healing, spirituality, and responding to offenders holistically by considering many issues beyond the specific criminal behavior.

The Maori in New Zealand built their system of justice on the idea that we are all part of one another (Considine, 1999). The aim of the Maori justice process is to restore the mana or personal standing of the victim, the victim’s family, and the family of the offender and to reestablish the social order of the wider community. A public hearing is used, subsequent to determining guilt, to hold the offender and his or her family accountable, followed by consultation with a volunteer panel to determine the measures necessary to heal hurts and restore things to normal again.

Other indigenous groups that use restorative practices include, among others, Native Hawaiians and various African tribal councils. The practices include the Afghani tradition of jirga, the Arab/Palestinian tradition of Sulha, and many of the ancient Celtic practices found in the Brehon laws.

The values of restorative justice are also deeply rooted in the ancient principles of Judeo-Christian culture (Zehr, 1990). Zehr notes that the unifying concept of shalom in the Old and New Testaments is particularly noteworthy because, among other things, it refers to the need to live in right relationship with one another and with God as well as the need for honesty or the absence of deceit in dealing with one another. The biblical concept of covenant also has application to restorative justice because it implies mutual responsibilities and commitments between people and with God and, as such, provides both the basis and a model for shalom. When wrongdoing occurs, therefore, both the Old and New Testaments set forth the obligation of offenders to directly repair the harm they caused to individuals, harm that has created a breach in the “Shalom community.”

Defining Restorative Justice

From disparate practices arrived at from different cultures over the centuries, a social movement applying a cohesive set of principles and practice has emerged. The most succinct and accepted definition of restorative justice is offered by Howard Zehr (2002), whom many consider to be the leading visionary and architect of the restorative justice movement. His seminal book Changing Lenses (Zehr, 1990) provided the conceptual framework for the movement and has influenced policy makers and practitioners throughout the world. According to Zehr,

Core to restorative justice principles is the understanding that it is a victim-centered process. This means that the harm done to the victim takes precedence and serves to organize the essence of the interaction between the key players. Although victim centered, the process is not victim controlled. This allows the process to address the needs of all the various stakeholders. For offenders, therefore, this means that restorative justice, while denouncing criminal behavior, yet emphasizes the need to treat offenders with respect and to reintegrate them into the larger community in ways that can lead to their lawful behavior. Restorative justice, in this regard, views accountability as central to the rehabilitation of offenders. Indeed, restorative justice attempts to draw upon the strengths of offenders and crime victims and their capacity to openly address the need to repair the harm caused instead of focusing on the offender’s weaknesses or deficits. Similarly, restorative justice believes communities, by pulling on their strengths, can be rebuilt despite crime.

From a restorative perspective, the primary stakeholders are individual victims and their families, affected communities, and offenders and their families. The state and its legal justice system also have an interest as a stakeholder, but in restorative justice, proceedings are removed from the direct impact of the crime and their focus instead is at the macro- rather than microlevel of engagement. Thus, the needs of those most directly affected by the crime come first. State institutions, however, are frequently called upon to provide support and space for forms of restorative justice dialogue between victims and offenders.

In its early years, the restorative justice movement, like many reform movements, focused on contrasting its values and principles with those of the status quo. Restorative justice was seen as an alternative paradigm to the dominant paradigm used by the criminal justice system. That paradigm was “retributive justice.” It meant that offenders should get what they deserved or their “just deserts.” In practice, retributive justice resulted in offenders receiving punishments that were commensurate with the seriousness of their crimes. The pain the offender felt was justified as an effective deterrent to future lawbreaking (Umbreit, 1994; Van Ness, 1999; Wright, 1996; Zehr, 1985, 1990).

After more than 25 years of practice, research, and continuing analysis, Zehr (2002) has come to a different understanding: that a sharp polarization between retributive and restorative justice is somewhat misleading. Zehr’s thinking is shared by the philosopher of law Conrad Brunk (2001) who argues that on a theoretical level, retribution and restoration are not the polar opposites that many assume. He notes that both actually have much in common: specifically, a desire to vindicate by some type of reciprocal action and some type of proportional relationship between the criminal act and the response to it. Retributive theory and restorative theory, however, differ significantly in how to “even the score,” how to make things right. Retributive theory holds that the imposition of some form of pain will vindicate, most frequently through deprivation of liberty and, in some cases, even through loss of life. Restorative theory argues that “what truly vindicates is acknowledgement of victims’ harms and needs, combined with an active effort to encourage offenders to take responsibility, make right the wrongs, and address the cause of their behavior” (Zehr, 2002, p. 59).

Even so, Zehr (2002) notes that restorative justice can be contrasted with conventional criminal justice along at least four key principles (see Table 1.1).

These two approaches also differ in the fundamental questions they pose in the search for justice. The conventional criminal justice system wants answers to three questions. What laws have been broken? Who did it? What do they deserve? From a restorative justice perspective, an entirely different set of questions are asked. Who has been hurt? What are their needs? Whose obligations are these? (Zehr, 2002)

These questions suggest that restorative justice requires a radically different way of viewing, understanding, and responding to the presence of crime within our communities. As the movement has grown so has the interest in addressing broader, system-level applications of restorative justice principles. Among others, Braithwaite (2002) speaks of restorative justice in these larger dimensions:

Sullivan and Tifft (2004) similarly speak of restorative justice in broad macroterms, noting that it requires a commitment to “create patterns of interaction among us all that take into account the needs of all from the very outset, structurally” (p. 117). These visions are nothing less than changing the way we do justice in the world.

Whether at the level of system-wide interventions or in individual programs, we are working toward restorative justice when our work meets the following criteria:

The second section of this chapter focuses on restorative justice dialogue, the most widely practiced and extensively researched modality of the restorative justice movement, as well as the public policy support for such dialogue across the United States.

History and Development of the Restorative Justice Movement

A small and scattered group of community activists, justice system personnel, and a few scholars began to advocate, often independently of each other, for the implementation of restorative justice principles and a practice called victim-offender reconciliation during the mid to late 1970s. These advocates in both the United States and Europe began establishing connections with one another, but they remained largely on the margins of the criminal justice system as a whole and were not initially connected with efforts to reform the system. Few of those involved in these early years would have ever thought that their modest yet passionate efforts to promote restorative justice would trigger a widespread social reform movement with international impact. These early thrusts, however, coalesced into what has become known as the restorative justice movement.

The first “child” of this birthing process was the Victim Offender Reconciliation Program (VORP) in Kitchener, Ontario, in 1974. This experiment involved two teenagers who pleaded guilty to 22 counts of property damage following a vandalism spree. After meeting individually with all the people they had victimized, the youth agreed to make restitution and within three months, handed each victim a check for the amount of his or her loss. From the late 1970s to the early 1980s, a number of experimental programs, modeled after the Kitchener program and built on restorative justice principles, were initiated in several jurisdictions in North America and Europe, with the first U.S. VORP started in Elkhart, Indiana, in 1978. VORP programs were rooted in the Mennonite experience and staffed, in part, by the Mennonite Central Committee (Cordella, 1991; Merry & Milner, 1995).

Through the mid-1980s, though introduced in many jurisdictions, restorative justice initiatives remained small in size and number. Consequently, they had little impact on the larger system. Indeed, few criminal justice officials viewed restorative justice programs as a credible component of their system. From the mid-1980s to the mid-1990s, however, the movement slowly began to be recognized in many communities as a viable option for interested crime victims and offenders, though still impacting a small number of participants. Indeed, England initiated the first state-supported Victim Offender Mediation Programs (VOM) during this period. VOM was similar to VORP but used language to describe the restorative justice process that was secular and closer to conflict resolution or civil dispute resolution, rather than faith-based, for example, shalom, atonement, and forgiveness (McCold, 1999).

In 1994, restorative justice took a giant step forward to becoming mainstream when the American Bar Association (ABA) endorsed VOM. Although this recognition followed a year-long study and considerable skepticism, the ABA ultimately recommended the use of VOM and restorative dialogue in courts throughout the country and provided guidelines for its use and development. These guidelines included that participation by both offenders and victims be entirely voluntary, that offenders not incur adverse repercussions, and that statements and information shared are inadmissible in criminal or civil court proceedings (American Bar Association, 1994).

Victim organizations were initially skeptical about victim-offender mediation and other restorative justice initiatives, in part because they felt that the movement, in its early history, was not sufficiently victim driven. However, in 1995, the National Organization for Victim Assistance (NOVA) endorsed the principles of restorative justice through publishing a monograph entitled Restorative Community Justice: A Call to Action. NOVA’s approval helped elevate the victim centeredness of the approach, and as dialogue programs and other restorative initiatives have continued to demonstrate a strong commitment to the needs and wishes of crime victims, victim organizations have become increasingly supportive.

The movement began to enter the mainstream in some local and state jurisdictions beginning in the mid-1990s, a development that has led to mixed consequences. On the one hand, recognition by and active collaboration with the formal justice system are vital to implementing the underlying vision of restorative justice. On the other hand, such widespread growth and impact have made the movement increasingly vulnerable to being subsumed and diluted by the very justice systems that were initially so critical of its existence. This issue is discussed in more detail in our concluding section.

Today, restorative justice policies and programs are developing in nearly every state, and they range from small, individual, and marginal programs in many communities to a growing number of state and county justice systems that are undergoing major systemic change. Examples of such systemic change initiatives are occurring in the states of Arizona, California, Colorado, Illinois, Iowa, Minnesota, New York, Ohio, Oregon, Pennsylvania, Texas, Vermont, and Wisconsin.

Restorative justice programs are being developed in many other parts of the world, including Australia, Canada, numerous European countries, Japan, China, New Zealand, South Africa, several South American countries, South Korea, Russia, and Ukraine. The United Nations, the Council of Europe, and the European Union have been addressing restorative justice issues for a number of years. Meeting in 2000, the United Nations Congress on Crime Prevention considered restorative justice in its plenary sessions and developed a draft proposal for “UN Basic Principles on the Use of Restorative Justice Programs in Criminal Matters” (United Nations, 2000). The proposed principles encourage the use of restorative justice programming by member states at all stages of the criminal justice process, underscore the voluntary nature of participation in restorative justice procedures, and recommend beginning to establish standards and safeguards for the practice of restorative justice. This proposal was adopted by the United Nations in 2002.

The Council of Europe was more specifically focused on the restorative use of mediation procedures in criminal matters and adopted a set of recommendations in 1999 to guide member states in using mediation in criminal cases. In 2001, the European Union adopted a victim-centered policy in support of “penal mediation,” otherwise known as VOM. This policy stated that member states (nations) of the European Union should promote mediation in criminal cases and integrate this practice into their laws (Commission of the European Communities, 2001).

European nations have clearly outpaced American policy development and implementation in support of restorative justice practices, with Austria having established the first national policy commitment in the world to broad implementation of VOM in 1988. Numerous other European countries have now made strong policy commitments to restorative justice and, particularly, VOM. Germany, for example, has an exceptionally broad and large commitment to VOM, with more than 468 programs and 20,000 cases referred annually. Other European countries that have developed local VOM programs or national initiatives include Denmark, Finland, Sweden, Ireland, the Netherlands, Luxembourg, Switzerland, Albania, Slovenia, Romania, Poland, Bulgaria, Italy, Spain, and Ukraine. England has gone far beyond a focus just on VOM, with a national policy recommendation to implement restorative justice policies and practices throughout the country (Home Office, 2003).

In contrast to many previous criminal justice reform movements that have primarily dealt with fine-tuning the existing structure, the restorative justice movement has major implications for system-wide change in how justice is done in democratic societies. While initiating restorative justice interventions, such as victim-offender mediation, family group conferencing, peacemaking and sentencing circles, restorative community service, victim panels, and other forms of victim-offender dialogue or neighborhood dispute resolution, is important, restorative justice, as a movement, places heavy emphasis upon changing the current system. Already, there are 19 states in America that have introduced and/or passed legislation promoting a more balanced and restorative juvenile justice system. Thirty other states have restorative justice principles in their mission statements or policy plans. There are individual restorative justice programs in virtually every state of America, and a growing number of states and local jurisdictions are dramatically changing their criminal and juvenile justice systems to adopt the principles and practices of restorative justice (O’Brien, 2000). This institutionalization of restorative justice is further buttressed by the ABA who, in 2006, began a national survey of restorative justice programs and, in 2008, offered grants to its members to develop restorative justice initiatives in criminal law settings.

Program Examples

In Orange County, California, a victim-offender mediation and conferencing program receives nearly a thousand referrals of juvenile offenders and their victims annually (Niemeyer & Shichor, 1996). This program is supported by a large government grant and provides needed support, assistance, and restoration for victims of crime, while also holding young people accountable to the victims and their communities for their misdeeds. By diverting these juveniles from further penetration into the justice system, if the victim’s needs are met, the County also benefits from a significant cost reduction in the already overcrowded court system. The program in Orange County is part of a much larger network of more than 1,500 victim-offender mediation and conferencing programs in 17 countries, working with both juvenile and adult courts.

In several U.S. cities, prosecuting attorney offices routinely offer choices to victims of crime to actively participate in the justice system, including participation in restorative dialogue with the offender and others affected by the crime, and to meet other needs that victims are facing. A program in Indianapolis works closely with the police department in offering family group conferencing services where young offenders and their families meet the individuals they have victimized and work through dialogue with each other toward repairing the harm, resulting in a significant reduction in recidivism among these offenders (McGarrell, Olivares, Crawford, & Kroovand, 2000).

Restorative justice principles and practices are increasingly being used in additional juvenile and criminal justice settings as well as in addressing larger issues of human rights violations and deeply entrenched national conflict and political violence. A dialogue-based format was creatively used in Eugene, Oregon, following a hate crime against the local Muslim community that occurred within hours of the September 11 attacks (Umbreit, Lewis, & Burns, 2003). The prosecutor’s office gave the victimized representatives of the Muslim community a choice of either following the conventional path of prosecution and severe punishment or the restorative justice path of participating in a neighborhood accountability board, including face-to-face conversations with the offender and others in the community who were affected by this crime. The victims elected to meet in dialogue; together they were able to talk openly about the full impact of this hate crime and to develop a specific plan to repair the harm and promote a greater sense of tolerance and peace within the community.

In several jurisdictions, restorative justice procedures are being used to enable ethnic communities to access elements of their traditional means of handling infractions and breaches of trust among themselves. The Hmong peacemaking circles in St. Paul, Minnesota, receive referrals from local judges in cases involving Hmong participants so that the offense is handled in a more culturally appropriate way that fosters peacemaking and accountability (Allam, 2002, March 2). In Canada, aboriginal groups are using the circle-sentencing format of restorative justice dialogue to handle a wide range of offenses within the community (Lajeunesse, 1996).

Restorative justice dialogue responses are increasingly being offered to victims of severe and violent crime, driven by requests from victims for such opportunities. Departments of Corrections in Texas, Ohio, Pennsylvania, and more than 20 other states have initiated statewide victim-offender mediation and dialogue programs through their victim services units (Umbreit, Vos, Coates, & Brown, 2003). In such programs and in the wake of trauma caused by extreme violence, including homicide, victims meet in facilitated dialogue with the offenders who have harmed them as part of their search for meaning and some measure of closure. Extensive preparation of all involved parties is required in these cases. In a related program, a retired Wisconsin Supreme Court Justice facilitates dialogue groups in a state prison among prisoners and with several victims of severe violence in an effort to ingrain the full human impact of the prisoners’ behavior upon victims and their communities.

Most recently, restorative practices are emerging as part of the healing process for victims of political violence. The Truth and Reconciliation Commission hearings in South Africa were established to foster national healing in the wake of severe violent political conflict as the apartheid system of racial segregation and oppression was dismantled (Dissel, 2000). The West African nation of Liberia has initiated a Truth and Reconciliation Commission to hold hearings in both Africa and Minnesota where the largest population of Liberian refugees reside and to incorporate restorative justice practices in the hearing process (The Advocates for Human Rights, 2008).

A victim-offender mediation was held in Israel between two Israeli-Palestinian youths and a young Israeli mother who had been assaulted and robbed; families of both the offenders and the victim were involved. Both the Jewish and the Palestinian communities actively participated and forged a path toward greater understanding, accountability, and mutual respect. Again within Israel, a restorative justice conference allowed the Arab victims of a Jewish hate crime and assault to meet face-to-face, talk about the full impact of the crime, and to develop a plan to repair the harm. In another case, a former prisoner who was an icon of the Irish Republican Army (IRA) movement in Northern Ireland met face-to-face with the daughter of one of the men he killed in their mutual search for greater understanding, meaning, and peace in their lives.

These are a sample of the increasing number of cases in which restorative justice dialogue is being used. These examples demonstrate the flexibility of using restorative justice in multiple settings from local to international to foster accountability and healing in the midst of severe criminal and political violence.

Systemic Change Examples

As many advocates point out, restorative justice is a process not a program. Therefore, some proponents are hopeful that a restorative justice framework can be used to foster systemic change. Such changes are beginning to occur. For example, within Minnesota, the state Department of Corrections established a policy to handle letters of apology by prisoners to their victims in a highly restorative and victim-centered manner. First, the state agency encouraged and assisted prisoners who wanted to write such letters. Instead of sending the letters directly to victims, an act that could revictimize them, the letters were deposited in a victim apology letter bank in the central office for later viewing by victims should they choose to want to do this (Minnesota Department of Corrections, nd).

Broad systemic change initiatives have been undertaken in a number of other countries. In 1988, Austria adopted federal legislation that promoted the use of victim-offender mediation throughout the country (Van Ness & Heetderks, 2002). In 1989, legislation was adopted in New Zealand that totally restructured their youth justice system based on the traditional practices of their indigenous people, the Maori, and principles consistent with restorative justice (Daly, 2001). The largest volume of youth justice cases now go to family group conferences, rather than court. This has resulted in a significant reduction in both court cases and incarceration, with no evidence of increased recidivism. Finally, a nation-wide systemic change effort has been undertaken in the United Kingdom through its policy commitment to adopt restorative justice principles and practices throughout the country (Van Ness & Heetderks, 2002). These changes are focused on increased participation by crime victims, youth accountability boards, and different forms of victim-offender mediation and dialogue.

Washington County Court Services near St. Paul, Minnesota, is one of few jurisdictions in the United States that has explicitly undertaken system-wide change through adopting policies informed by restorative justice principles. Here is a summary of data gathered from a more extensive study from interviews with key system and community decision makers to document the change process and gather participant assessments regarding significant changes made (Coates, Umbreit, & Vos, 2004).

Often reform efforts in criminal justice are prompted by a crisis, for example, a jail riot or an offender suicide. This was not the case in Washington County. Instead, key leaders built upon long established relationships among criminal justice professionals and with community groups that started when the Community Corrections Act passed in 1973, giving counties more administrative control and resources for developing community-based programs for offenders. Washington County took advantage of the Act and chose to participate by providing services that were as community based as possible. It established a Community Corrections Advisory Board comprising citizens, judges, the County Attorney, the County Sheriff, and representatives from Probation, Community Services, Public Defenders, and Law Enforcement plus ex officio members, for example, County Board Commissioner. Growing out of a long tradition of providing prevention and early intervention services to youth, Court Services wrote a grant to develop and strengthen restitution programs, community service, and VOM. When VOM was cut, the staff for the program pushed for broad systemic change and a more open endorsement of movement toward a restorative justice philosophy. A variety of change strategies were adopted. The department staff began learning about restorative justice and became committed to a victim focus and using restorative practices for their internal relationship issues. Criminal justice decision makers gradually signed on as they were more exposed to restorative justice principles and because of concerns for the unmet needs of victims. Community members and groups became involved as they were invited to participate on ad hoc committees, which increased communication, relationship building, and trust with Court Services.

There were also expected tensions around conflicting ideas or use of resources. Some community advocates felt, for example, that Court Services was not moving fast enough, while others felt that the staff was moving too fast or was directly or indirectly critical of what community-based providers had been doing for years. Some resisted the focus on offender’s needing to understand the impact of their actions on victims and the community claiming that this added more to their workload. Still others felt that a restorative justice approach was not punitive enough.

However, Court Services also recognized that a restorative justice teamwork increased options available to staff. For example, more consideration was given to the nature of reparations and how services provided by offenders could more meaningfully give back to the victim and community rather than just hours of work because the system ordered it. Peacemaking Circles as well became an additional option that builds on community partnerships and collaboration.

After a time of experience with some restorative practices, Washington County Court Services decided to revise its mission statement to incorporate the changes. This was accomplished by getting staff together to hash out a thoughtful vision, mission, and values statement along with reviewing policy and procedures with the restorative mission in mind. Attention was given as well to how best to measure the impact of their restorative justice programs. Each one of these developments has brought waves of reaction to possible change. For example, tensions arose among staff members as debate was carried out regarding next steps in a proposed idea, accountability measures, and the role of Court Services in the community and other justice system components. However, as one community participant said, “It takes time to establish an effective process. It takes a lot of time to establish relationships because the most effective restorative justice is a partnership and doesn’t come from the top down. Nor does it come from the bottom up. It kind of grows together between community members and court services and everyone else.”

The collective focus on offenders, victims, and community has provided a new foundation for thinking and action that applied to everything from writing case reports, to assessment, to new program development. In reviewing the change that occurred both in mindset and strategy, the director of court services often used a “seed planting” metaphor. To that end, it took considerable time to provide the education and training necessary to switch gears. Likewise, seeds were planted through one-on-one conversations and through relationship building. When workers were asked about the development of restorative justice in the county system, most of the individuals interviewed identified mutual respect and relationship building as pivotal for this effort at reform to succeed.

The restorative justice frame, however, brought victim issues into focus, which resulted in an explicit broadening of the mission of the county to include victims along with offenders and community.

Indeed, community support was central in providing the impetus for change, a change that was not always appreciated. “It is the community piece that has some in the system reacting to restorative justice with resistance,” the director said. He believed that systems changed primarily because of outside forces. In this instance, that was the community, including victim groups, as well as service providers. Community members participated on ad hoc department committees, as volunteers in victim-offender conferencing and peacekeeping circles, and as developers of private community-based services. This involvement was not without tension. Some community participants wanted the system to move further and faster than many key decision makers were prepared to do. A few long established community service providers were skeptical of some restorative practices. Yet it was this partnership among community participants, criminal justice decision makers, and court service personnel that formed the foundation for the reform and upon which the ongoing process depends.

Reform proponents point to specific changes reflecting a restorative justice lens as responsible for the county’s success. These include the use of victim-offender conferencing and peacekeeping circles, case planning focused on victim and community needs as well as those of offenders, and assessment tools considering the impact on all three groups. Much work is left to be done to make these changes system wide and to help systems remain open to new restorative possibilities. Participants acknowledge that continuation of the reform will require risk taking and that this restorative process “is a marathon not a sprint.”

Description

Four general types of restorative justice dialogue are examined in this review. These include victim-offender mediation, group conferencing, circles, and “other.” All have in common the inclusion of victims and offenders in direct dialogue, nearly always face-to-face, about a specific offense or infraction; the presence of at least a third person who serves as mediator, facilitator, convener, or circle keeper; and usually, advance preparation of the parties so they will know what to expect. The focus of the encounter nearly always involves naming what happened, identifying its impact, and coming to some common understanding, often including reaching agreement as to how any resultant harm will be repaired. Use of these processes can take place at any point in the criminal justice process, including prearrest, precourt referral, presentencing, or postsentencing, and even during incarceration.

Victim-offender mediation (often called “victim-offender conferencing,” “victim-offender reconciliation [VORP],” or “victim-offender dialogue”) usually involves a victim and an offender in direct mediation facilitated by one or sometime two mediators/facilitators; occasionally the dialogue takes place through a third party who carries information back and forth, a process known as “shuttle” mediation. In face-to-face meetings between the victim and offender, support persons (such as parents or friends) for victims and/or offenders are often present; a 1999 survey of victim-offender mediation programs in the United States found that support persons, including parents in juvenile cases, were present in nearly nine out of ten cases (Umbreit & Greenwood, 1999).

Group conferencing (usually known as “family group conferencing” or “community group conferencing” or “restorative group conferencing”) routinely involves support persons for both victims and offenders as well as additional participants from the community. Many group conferencing programs rely on a script, though some are more open ended. The number of support persons present can often range from 6 to 10 to only a few, much like victim-offender mediation. Some group conferences can have well over 10 people.

Circles are variously called “peacemaking circles,” “restorative justice circles,” “repair of harm circles,” and “sentencing circles.” The numbers and types of participants gathered for circles are similar to those gathered for conferences, though sometimes there is even wider community member participation, either as interested persons, representatives of the criminal justice system, or as additional circle keepers or facilitators. The process involves the use of a “talking piece” that is passed around the circle to designate who may speak.

“Other” refers to programs such as reparative boards and other community-based programs that invite victims and offenders to participate together in crafting an appropriate response to the offense.

Increasingly over time, distinctions across these categories have begun to blur, in particular between “mediation” and “group conferencing.” Thus there are programs that refer to their process as “family group conferencing” or “restorative group conferencing” but in fact convene only offenders and victims with few if any support persons and no outside community representatives. Similarly, many “victim-offender mediation” or “victim-offender conferencing” programs have moved towards more routinely including support persons and occasional additional affected community members.

Despite the overlap, there are differences in the relative importance of various stakeholders in each type of restorative dialogue. (See Figure 1.2.) For example, victim-offender mediation highlights the victim and offender as the primary parties in the offense and gives greater emphasis to storytelling and problem solving through dyadic dialogue (Bazemore & Schiff, 2005). Group conferencing puts a central focus on the role of the family and other support persons because those people have the best chance of influencing the offender through the importance of their prior or ongoing relationship and the use of empathy, support, and respectful disapproval. Circles feature shared leadership and consensus-based decision making as core to the functioning of the group and the development of the group’s process. Although the purpose of the circle may be to address the offender’s behavior, circles also tend to place more attention philosophically on stakeholder and community needs. Boards operate under a small decision-making body of community volunteers that gives primary consideration to the offender and reparation. Boards underscore the citizenry’s ownership of the criminal justice system because of the member’s direct involvement in the justice process (Bazemore & Umbreit, 2003).

FIGURE 1.2

The present review attempts to maintain the distinction between these four types of restorative dialogue especially between victim-offender mediation (or victim-offender conferencing) and group conferencing (family group conferencing). However, it seems likely that knowledge building may be better served in the future by collapsing the categories. So doing would allow for participant responses and outcomes to be analyzed across actual variations in structure and format, rather than according to what the intervention is called. Zehr has also called for a reconsideration of the conventional typology, suggesting that restorative justice programs can be placed on a continuum from fully restorative to not restorative based on not dialogue type but the meeting of specific criteria including, among others, the involvement of the relevant stakeholders, the victim-centered nature of the process, and the adequacy of the restorative justice dialogue to deal with harms, needs, and causes (2002).

Humanistic Mediation

Facilitation of restorative justice dialogues rests on the use of humanistic mediation. Contemporary mediation practice has been heavily undergirded by the legal profession, concerns about procedural fairness, and the need for settlement agreements. In contrast, humanistic mediation rests on client empowerment, recognition of each other’s humanity despite the conflict, and the building of a deeper, mutually respectful relationship. It acknowledges that most conflicts develop within a larger emotional and relational context characterized by powerful feelings of disrespect, betrayal, and abuse. When these feelings about the past and current state of the relationship are suppressed or not aired in a healthy manner, an agreement might be reached, but the underlying emotional conflict remains. Little healing of the emotional wound is likely to occur without an opening of the heart through genuine dialogue, empowerment, and recognition of each other’s humanity despite the conflict. Instead of being directive, therefore, humanistic mediation is nondirective and dialogue driven. It prepares the parties, through separate premediation sessions with the mediator, so that they feel safe enough to have an opportunity to engage in a genuine conversation about the conflict, to experience their own sense of empowerment, and to express “compassionate strength,” including empathy for the other party in the conflict (Bush and Folger, 1994). It allows the parties to discuss the full impact of the conflict and to assist each other in determining the most suitable resolution. The art of mediation is found in connecting with people at a human level through the expression of empathy, warmth, and authenticity.

Evidence-Based Practice

Restorative justice is more a process than a product. Consequently, the measurement of its success requires an evaluation of the factors that influence the process as much as its outcomes. Restorative justice research, therefore, has concentrated on participation rates and reasons, participant satisfaction, and participant perception of fairness as indicators of the health of the process as well as restitution and repair of harm, diversion, recidivism, and cost. Moreover, evaluations of restorative justice dialogue are extensive and, in relationship to youth, indicate a closer examination over a longer period of time than most other programs in the juvenile offender service, including cognitive behavioral treatment, juvenile drug courts, and family-based therapy programs (Aos, Miller, & Drake, 2006).

For example, over 85 studies have been conducted of various types of restorative justice dialogue including 4 meta-analyses, one of which was based on a sample of over 12,000 youth (Bradshaw & Roseborough, 2005). This research that has been generated over the past 30 years suggests that the restorative justice paradigm can make a substantial contribution to increased victim involvement and healing, offender responsibility for behavior change and learning from experience, and community participation in shaping a just response to law violations and destructive behavior.

Participant satisfaction has remained the most commonly studied outcome variable across all restorative justice approaches. Expression of satisfaction with victim-offender mediation is consistently high across sites, cultures, and offense severity for both victims and offenders. Indeed, those offenders who find the process satisfying also tend to display lower recidivism rates and are more likely to adhere to restitution agreements (Latimer, Dowden, & Muise, 2005). Typically, eight out of ten participants report being satisfied with the process and resulting agreement (Carr, 1998; Evje & Cushman, 2000; L. Roberts, 1998; T. Roberts, 1995; Umbreit, Coates, & Vos, 2001).

Restitution is regarded by many as an important by-product of bringing victim and offender together. Restitution or what is called reparation can be quite varied and include direct compensation to the victim, community service, work for the victim, and sometimes unique paybacks devised between victim and offender. Apologies are also often included in program reports as a component of repairing the harm. In some settings, restitution amounts are established before cases are referred for a restorative justice intervention; in others, deciding whether the victim should receive restitution, the type, and how much are seen as important domains for the dialogue session.

Victim participation seems to contribute to the nature and willingness to meet the conditions of the agreement. For example, one study found that reparation occurred 42% of the time when victims were present compared to 29% across all cases that harmed victims (Maxwell & Morris, 1993). Moreover, when victims are present, work performed by offenders is more likely to be done for the victim than when victims are not present. There are no known studies of restitution for peacemaking circles. The Vermont Reparation Board program, however, reported that restitution was ordered in 69% of cases where material harm was identified. Of the victims surveyed, 66% indicated that their losses were addressed. Victim participation appears to be an important determinant as demonstrated by the fact that the percentage of apologies rose from 18% for all cases to 67% in cases where victims attended (Karp, Sprayregen, and Drakulick, 2002).

Recidivism studies are important indicators of restorativeness because a major objective in all restorative justice approaches is to change offending behavior. Moreover, desistance from crime indicates both individual and social well-being (Presser & Van Voorhis, 2001). Although studies indicate that victim-offender mediation and group conferencing have significant impact on reoffending, little is known, as yet, about the contribution peacemaking circles and reparation boards make to reducing recidivism or the durability of their imprint. Because peacemaking circles involve community members and therefore have a potentially wider effect, there is some evidence that this practice could also serve as a community control mechanism to prevent crime. For example, a study of the impact of “healing circles” on the Hollow Water First Nation community located in the Canadian Province of Manitoba suggests that the effect might be substantial. Hollow Water has had a recidivism rate of approximately 2% over a 10-year period (Native Counseling Services of Alberta, 2001).

Indeed, there is little research on the systemic impact of restorative justice. Those countries, however, that legislate the use of restorative justice provide opportunities to measure its influence more broadly. In Australia, for example, group conferencing reduced the total number of policy interventions involving youth and increased the proportion of cases handled through cautioning rather than in court (Moore & Forsythe, 1995). In New Zealand, systemic changes made through the Children, Young Persons and Families Act of 1989 have dramatically reduced the court load from up to 13,000 cases per year to as little as 2,587 in 1990 (Maxwell & Morris, 1993).

Although the viability of restorative justice is dependent on the findings of evaluation research, the nature of its goals calls for future studies of process and outcome that are built, with greater precision, on a restorative justice base. These goals include considerations such as systemic social change; complexity of interactional processes that involve encounters between victims, offenders, and communities; and diversity of implementations. Presser and Van Voorhis (2001) identify three core restorative justice processes, namely dialogue, relationship building, and communication of societal values, and two overarching restorative justice outcomes, namely reparation and social well-being, as useful points of departure. Likewise, Bazemore and Schiff (2005) propose that future practice and research be tied to restorative justice principles that encompass both micro- and macrolevel objectives, for example, making amends, but they go further in suggesting that studies also examine more nuanced relationships between restorative justice and intervention theories such as social support and social exchange in order to understand the impact of short-term outcomes on long-term results. Both suggestions indicate that restorative justice research needs to be guided by a restorative justice framework in order to illuminate the full potential of what restorative justice can offer to victims, offenders, and the community.