Restorative justice

Restorative justice (also sometimes called reparative justice ) is an approach to justice that focuses on the needs of the victims and the offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, "to repair the harm they've done—by apologizing, returning stolen money, or community service". Restorative justice involves both victim and offender and focuses on their personal needs. In addition, it provides help for the offender in order to avoid future offences. It is based on a theory of justice that considers crime and wrongdoing to be an offence against an individual or community, rather than the state. Restorative justice that fosters dialogue between victim and offender shows the highest rates of victim satisfaction and offender accountability.

Definition
According to Braithwaite (2004), restorative justice is:

"...a process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have afflicted the harm must be central to the process."

The process of restorative justice necessitates a shift in responsibility for addressing crime. In a restorative justice process, the citizens who have been affected by a crime must take an active role in addressing that crime. Although law professionals may have secondary roles in facilitating the restorative justice process, it is the citizens who must take up the majority of the responsibility in healing the pains caused by crime.

According to Zehr and Mika (1998), there are three key ideas that support restorative justice. First is the understanding that the victim and the surrounding community have both been affected by the action of the offender and, in addition, restoration is necessary. Second, the offender's obligation is to make amends with both the victim and the involved community. Third, and the most important process of restorative justice, is the concept of 'healing,' or the collaborative unburdening of pain for the victim, offender, and community. All parties engage in creating agreements in order to avoid recidivism and to restore safety for how the wrongdoing can be righted which allows the victim to have direct say in the judgment process. This gives offenders the opportunity to understand the harm they have caused, while demonstrating to the community that the offender might also have suffered prior harm. Healing by reintegration of offenders into the community, strives to restore harmony, health, and well-being by comprising personal accountability, decision-making and the putting right of harm. This inclusion as opposed to exclusion, demonstrates the capability of transformation of the administration of criminal justice, mental health, psychology and public policy norms. Examples of healing include: victim offender mediation, conferencing, healing circles, victim and ex-offender assistance, restitution, and community service, each method healing in different ways.

Restorative justice principles are characterized by four key values: first, the encounter of both parties. This step involves the offender, the victim, the community and any other party who was involved in the initial crime. Second, the amending process takes place. In this step, the offender(s) will take the steps necessary to help repair the harm caused. Third, reintegration begins. In this phase, restoration of both the victim and the offender takes place. In addition, this step also involves the community and others who were involved in the initial crime. Finally, the inclusion stage provides the open opportunity for both parties to participate in finding a resolution. The process of restorative justice is lengthy and must be committed to by both parties for effective results.

Restorative justice is defined as: "...a growing social movement to institutionalize peaceful approaches to harm, problem-solving and violations of legal and human rights. These range from international peacemaking tribunals such as the South Africa Truth and Reconciliation Commission to innovations within the criminal and juvenile justice systems, schools, social services and communities. Rather than privileging the law, professionals and the state, restorative resolutions engage those who are harmed, wrongdoers and their affected communities in search of solutions that promote repair, reconciliation and the rebuilding of relationships. Restorative justice seeks to build partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within our communities. Restorative approaches seek a balanced approach to the needs of the victim, wrongdoer and community through processes that preserve the safety and dignity of all.""

Restorative justice is very different from either the adversarial legal process or that of civil litigation. J. Braithwaite writes, "Court-annexed ADR (alternative dispute resolution) and restorative justice could not be philosophically further apart", because the former seeks to address only legally relevant issues and to protect both parties' rights, whereas restorative justice seeks "expanding the issues beyond those that are legally relevant, especially into underlying relationships." Similarly, citing Greif, Liebmann wrote"a way of looking at restorative justice is to think of it as a balance among a number of different tensions:
 * a balance between the therapeutic and the retributive models of justice
 * a balance between the rights of offenders and the needs of victims
 * a balance between the need to rehabilitate offenders and the duty to protect the public."

Traditional criminal justice seeks answers to three questions: What laws have been broken? Who did it? and What do the offender(s) deserve? Restorative justice instead asks: Who has been harmed? What are their needs? Whose obligations are these?

History
Restorative approaches to crime date back thousands of years (and the term "restorative justice" has appeared in written sources since the first half of the nineteenth century ):
 * In Sumer, the Code of Ur-Nammu (c. 2060 BC) required restitution for violent offenses.
 * In Babylon, the Code of Hammurabi (c. 1700 BC) prescribed restitution for property offenses.
 * In Israel, the Pentateuch specified restitution for property crimes.
 * In Rome, the Twelve Tables (449 BC) compelled convicted thieves to pay double the value of stolen goods.
 * In Ireland, under the Brehon Laws (first recorded in the Old Irish period) compensation was the mode of justice for most crimes.
 * In Germany, tribal laws promulgated by King Clovis I (496 AD) called for restitutive sanctions for both violent and nonviolent offenses.
 * In England, the Laws of Ethelbert of Kent (c. 600 AD) included detailed restitution schedules.
 * In North America, justice in First Nations and Native American communities have had aspects of restorative justice.
 * In New Zealand/Aotearoa, prior to European contact, the Maori had a well-developed system called Utu that protected individuals, social stability and the integrity of the group.

Retributive justice began to replace such systems following the Norman invasion of Britain in 1066 A.D. William the Conqueror's son, Henry I, detailed offenses against the “king’s peace.” By the end of the 11th century, crime was no longer perceived as injurious to persons, but rather was seen as an offense against the state.

More recent examples of restorative justice include the South African Truth and Reconciliation Commission and the practicing of informal dispute resolution in the Gullah Islands of South Carolina.

Application
In criminal cases, victims can testify about the crime's impact upon their lives, receive answers to questions about the incident, and participate in holding the offender accountable. Offenders can tell their story of why the crime occurred and how it has affected their lives. They are given an opportunity to directly compensate the victim—to the degree possible. In criminal cases, this can include money, community service in general and/or specific to the offense, education to prevent recidivism, and/or expression of remorse.

In social justice cases, impoverished victims such as foster children are given the opportunity to describe their future hopes and make concrete plans to transition out of state custody in a group process with their supporters. In social justice cases, restorative justice is used for problem solving.

Restorative justice can proceed in a courtroom or within a community or nonprofit organization.

A courtroom process might employ pretrial diversion, dismissing charges after restitution. In more serious cases, a prison sentence may precede other restitution.

In the community, concerned individuals meet with all parties to assess the experience and impact of the crime. Offenders listen to victims' experiences, preferably until they are able to empathize with the experience. Then they speak to their own experience: how they decided to commit the offense. A plan is made for prevention of future occurrences, and for the offender to address the damage to the injured parties. All agree. Community members hold the offender(s) accountable for adherence to the plan.

While restorative justice typically involves an encounter between the offender and the victim, some organizations, such as the Mennonite Central Committee Canada, emphasize a program's values over its participants. This can include programs that only serve victims (or offenders for that matter), but that have a restorative framework. Indigenous groups are using the restorative justice process to try to create more community support for victims and offenders, particularly the young people. For example, different programs are underway at Kahnawake, a Mohawk reserve in Canada, and at the Pine Ridge Indian Reservation of the Oglala Lakota nation, within the United States.

Application in prisons
In addition to serving as an alternative to civil or criminal trial, restorative justice is also thought to be applicable to offenders who are currently incarcerated. The purpose of restorative justice in prisons is to assist with the prisoner's rehabilitation, and eventual reintegration into society. By repairing the harm to the relationships between offenders and victims and offenders and the community that resulted from the crime, restorative justice seeks to understand and address the circumstances which contributed to the crime in order prevent recidivism once the offender is released. The potential for restorative justice to reduce recidivism is one of the strongest and most promising arguments for its use in prisons, but there are both theoretical and practical limitations, which can make restorative justice unfeasible in a prison environment-such as: difficulty engaging offenders and victims to participate in mediation; the controversial influence of family, friends, and the community; and the prevalence of mental illness among prisoners.

Victim-offender mediation
Victim-offender mediation, (VOM, also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice dialogue), is usually a meeting, in the presence of a trained mediator, between victim and offender. This system generally involves few participants, and often is the only option available to incarcerated offenders. VOM originated in Canada as part of an alternative court sanction in a 1974 Kitchener, Ontario case involving two accused vandals who met face-to-face with their many victims.

Family group conferencing
Family group conferencing (FGC) has a wider circle of participants than VOM, adding people connected to the primary parties, such as family, friends and professionals. FGC is often the most appropriate system for juvenile cases, due to the important role of the family in a juvenile offender’s life. Examples can be found in New South Wales (Australia) under the 1997 Young Offenders Act, and in New Zealand under the 1989 Children, Young Persons, and their Families Act. The New South Wales scheme has been favorably evaluated by the New South Wales Bureau of Crime Statistics and Research.

Restorative conferencing
Restorative conferencing (RC) also involves a wider circle of participants than VOM. Restorative conferences, which have also been called restorative justice conferences, family group conferences and community accountability conferences, originated as a response to juvenile crime.

An RC is a voluntary, structured meeting between offenders, victims and both parties' family and friends, in which they address consequences and restitution. RC is explicitly victim-sensitive.

The conference facilitator arranges the meeting. In some cases, a written statement or a surrogate replaces an unwilling victim. The conference facilitator sticks to a simple script and keeps the conference focused, but intentionally does not testify. The intent is to allow subsequent conferences to succeed without a facilitator.

RC was successfully introduced in several schools in England, including St. Augustine of Canterbury (2004–2008) Taunton, Somerset. Positive results led officials to offer training to all Somerset secondary schools.

Community restorative boards
A community restorative board, also referred to as Community Justice Committees in Canada and Referral Order Panels in England & Wales, is typically composed of a small group, prepared by intensive training, who conduct public, face-to-face meetings. Judges may sentence offenders to participate; police may refer them before charging them; or they may engage outside the legal system.

Victims meet with the board and offender, or submit a written statement which is shared with the offender and the board. Board members discuss the nature and impact of the offense with the offender. The discussion continues until they agree on a deadline and specific actions for the offender to take. Subsequently, the offender documents progress in fulfilling the agreement. After the deadline passes, the board submits a compliance report to the court or police, ending the board’s involvement.

Restorative Circles and restorative systems
In Brazil the juvenile justice system, neighbourhoods and schools have begun to use Restorative Circles developed by Dominic Barter inspired by Nonviolent Communication. The approach involves a much wider circle of participants than conventional victim/offender conferencing, and begins with establishing a restorative system in the neighbourhood or school where circles will be held. As such, Barter's approach offers scope for radical social transformation. This process is being adopted in Germany, the USA, the UK, Canada and Uganda, and outside of the justice and education systems.

In Hawaii, Huikahi Restorative Circles allow prisoners to meet with their families and friends in a group process to support their transition back into the community. Meetings specifically address the need for reconciliation with victims of their crime(s). A Modified Restorative Circle was developed and used in Hawaii for offenders whose loved ones are unable or unwilling to participate. Other prisoners sit in the Circle and help develop the transition plan.

Circles of Support and Accountability
Circles of Support and Accountability (CoSA) originated as a project of the "Welcome In", a Mennonite church in Hamilton, Ontario. This approach has demonstrated the capacity to enhance the safe integration of otherwise high-risk sex offenders with their community. Canada judges some sex offenders too dangerous for any form of conditional release, "detaining" them until they serve their entire sentence. A subsequent conviction often leads to designation as a "Dangerous Offender".

Prior to 1994 many such offenders were released without any support or observation beyond police surveillance. Between 1994 and 2007, CoSA assisted with the integration of well over 120 such offenders. Research indicated that surrounding a 'core member' with 5–7 trained volunteer circle members reduced recidivism by nearly 80%. Further, recidivist offences were less invasive and less brutal than without the program. CoSA projects now exist in every Canadian province and every major urban centre. CoSA projects are also operational in several U.S. states (Iowa, California, Minnesota, Oregon, Ohio, Colorado, Vermont) as well as in several United Kingdom regions (Cornwall, Devon, Hampshire, Thames Valley, Leicestershire, North Wales, North Yorkshire, and Manchester).

Sentencing circles
Sentencing circles (sometimes called peacemaking circles) use traditional circle ritual and structure to involve all interested parties. Sentencing circles typically employ a procedure that includes: (1) application by the offender; (2) a healing circle for the victim; (3) a healing circle for the offender; (4) a sentencing circle; and (5) follow-up circles to monitor progress.

Implementation
Brian Royce developed an approach he called "Operationalized Restorative Justice" for a contracted private prison for the state of Pennsylvania in the United States. The system was adopted and used in numerous contracted prisons around the country. The system was shown to significantly reduce recidivism and internal conflicts within the prisons.

The two primary uses within an institution are to manage behavior overall and to respond to specific criminal actions and behavior. Using restorative justice as an overall BMT is significantly more effective over the long term. It can be difficult to implement, as such wide changes to the culture of an institution are usually met with resistance from both the staff and the institution population.

Predominately restorative justice is used for the victim, specifically with a kind of mediation and/or restitution from the offender. Restorative justice is based on bringing together the victim, the offender, and the community; all have equal parts in repairing the relationships destroyed by crime. Generally the offender is held accountable to the victim for the criminal action and accountable as well to the community. The underlying premise of restorative justice holds that all three are accountable to each other.

The offender must be held accountable, the offender must give back in the way prescribed by the victim to make amends. Additionally the offender must also give back to the community, as crime devalues any community. The community is accountable to the victim by assisting in enforcing any reparations agreed upon by the victim, and to the offender by helping the person avoid committing any more crime. In some cases, it may be difficult for the victim to participate in meetings directly, but the system is based on the offender being brought to face the implications of the crime.

To implement the system within an institution, considerable ground work is needed. First, the institution has to establish what the norms are – what really goes on within the institution, evaluate whether they are acceptable to the whole community, and work from there. Ideally, the institution will define and establish positive norms which each person understands. For example, Albert Elias wrote about the norms of Respect, Responsibility, Confrontation, Help, Trust and Support. He gave concrete definitions for these norms, and held the inmates in their care to these norms, establishing what was called normative behavior. It is likely better for an institution to decide its norms through a process.

The second aspect is to ensure that the rules support the norm and are consistent with it, to make the rules enforceable. When there are clear norms/rules for what is acceptable and unacceptable behavior, the community can be held accountable to live by these. This can be done numerous ways, depending on the size of the institution, the physical layout, the type, the counseling programs, and the staffing. Here is where the separation between a response to criminal behavior within the institution and the overall behavior management tool becomes apparent. When used as a response to criminal behavior, the sequence of events is:
 * Crime takes place;
 * A circle (defined below) is called, composed of the victim, offender, and people within the community; and
 * The circle discusses what happened, and develops and executes some sort of reparation.

A circle is one of the most commonly used Restorative Justice practices, usually comprising the offender and the community and, if applicable, the victim. The offender must acknowledge the crime, the community discusses the implications, and, if applicable, the victim discusses the ramifications and the personal “cost”. The circle must come to agreement on an acceptable restoration. The offender has to restore the cost, or provide a kind of compensation. The circle has regular meetings to discuss the progress, address any issues, and ultimately attempt to restore justice.

When used as an overall behavior management tool, Restorative Justice embraces cognitive behavioral techniques (CBT) through counseling and therapy. It is based on a person's taking positive actions and being able to see oneself positively. By feeling good about being positive, the person is more likely to maintain the positive behavior. CBT can contribute to the success of restorative justice. Restorative justice and CBT are being used together in alternative counseling, specifically targeted at sex offenders, juvenile offenders, extremely violent offenders, drug counseling, family counseling, etc.

Limitations on restitution
Some judicial systems only recognize monetary restitution agreements. For instance, if victim and offender agree that the offender would pay $100 and mow the victim's lawn five times, the court would only recognize the $100 as restitution. Some agreements specify a larger monetary amount (e.g. $200) to be paid if the non-monetary restitution is not completed.

Many jurisdictions cap the amount which a juvenile offender can be required to pay. Labor regulations typically limit the personal service tasks that can be performed by minors. In addition, personal service usually must be approved by the juvenile's parents.

According to the Victim Offender Mediation Association, victims are not allowed to profit from restitution (the equivalent of punitive damages); only out-of-pocket losses (actual damages) can be recovered. Courts can disallow unreasonable compensation arrangements.

Poor facilitator training is a common cause of poorly designed agreements.

Confidentiality
Some restorative justice systems, especially victim-offender mediation and family group conferencing, require participants to sign a confidentiality agreement. These agreements usually state that conference discussions will not be disclosed to nonparticipants. The rationale for confidentiality is that it promotes open and honest communication.

Recidivism
Reduction of recidivism is also a goal of RJ, secondary to the restoration of offenders. Proponents argue that it can prevent reoffending and deter other potential criminals. Critics counter that RJ does not significantly influence crime rates. Proponents aver that RJ is more effective than traditional methods, not that it leads to an absolute decrease in crime rates. The majority of the arguments on both sides, however, are theoretical, as the use of restorative practices is recent and is not widespread.

As of 2007, studies that compared recidivism rates are not definitive. While some studies claim modest, relative reductions,  others find no significant difference.

Restorative Practices
The Restorative Practices (RP) concept has its roots in RJ. RP is an emerging field of practice and study devoted to building social capital and achieving social discipline through participatory learning and decision-making. RP ties together theory, research and practice in fields such as education, counseling, criminal justice, social work and organizational management. The unifying hypothesis of restorative practices is that human beings are happier, more cooperative and productive, and more likely to make positive behavioural changes when others do things with them (via collaboration), rather than to them (via coercion) or for them (via independent action).

In criminal justice, RP circles and conferences allow involved parties to resolve offenses collaboratively. In social work, RP family group decision-making (FGDM) and FGC support collaboration within families, e.g., to protect children. In education, student circles and groups collaborate to peacefully resolve disputes.

The criminal justice field uses the phrase "restorative justice"; social workers say "empowerment"; educators prefer "positive discipline" or "the responsive classroom"; while leadership consultants choose "horizontal management".

RP is spreading in multiple countries, in education, criminal justice, family and youth and-serving and workplace applications.

RJ has not currently succeeded when applied to drug offences, sexual assault and domestic violence. South Australia and New Zealand have attempted RJ with juvenile sexual offenders.

Indigenous regions of Canada have tentatively implemented circle sentencing to deal with domestic violence. Advocates believe that it may be applicable to these indigenous communities because it relates to traditional cultural values of restoring balance in the community. In addition, First Nations have low regard for the local (punitive) court system, in which their people are over-represented in court and in prison.

Since 2000, Kahnawake, a Kanien’kehá:ka reserve, has introduced the use of restorative justice to intervene before an arrest occurs, and to prevent one. Feeling ill-served by the adversarial Canadian system, the community is particularly interested in incorporating restorative justice to work with its younger members and help prevent future offenses. Some Native American nations have also begun to adopt Restorative Justice practices; the Oglala Sioux Tribe of the Pine Ridge Reservation is planning a tribal justice center to include a courtroom for Restorative Justice.

Prison abolition
Prison abolition not only calls for the eradication of cages, but also new perspectives and methodologies for conceptualizing crime. With a view of crime that is distinct from that of retributive justice, restorative justice complements this objectives of abolition. In an abolitionist style of restorative justice, participation is voluntary and not limited by the requirements of organizations or professionals, the process includes all relevant stakeholders and is mediated by an independent third party, and the emphasis is on meeting the needs of and strengthening the community.

Research
A 2007 meta-study of all research projects concerning restorative justice conferencing published in English between 1986 and 2005 found positive results, specifically for victims:
 * Greater ability to return to work, to resume normal daily activities, and to sleep
 * No cases of offenders verbally or violently abusing victims
 * Reduced fear of the offender (especially for violence victims); lower perceived likelihood of another offense; increased sense of security; reduced anger towards the offender; greater sympathy for the offender and the offender's supporters; greater feelings of trust in others; increased feelings of self-confidence; reduced anxiety

Other findings included:
 * The only principled basis for selectively allowing, or banning, RJ is harm reduction.
 * Limited public familiarity and misconceptions about RJ
 * Greater availability, together with information about victims' positive views is likely to increase the proportion of victims willing to participate.

In July 2011, the International Center for Transitional Justice published a report entitled “To Live as Other Kenyans do: A Study of the Demands of Kenyan Victims of Human Rights Violations”. The findings are based on individual and group interviews of victims of human rights abuses from Kenya’s 2007 post-election violence. It highlights the importance of a victim-centered approach to determine the most effective mode of implementation for a comprehensive reparations program. The main finding of the report is that victims demand tangible basic benefits lost as a product of violence, such as food and shelter. It also acknowledges the need for symbolic reparations, such as formal apologies. The provision of reparations will in a sense create a restoration of the way life was before violence, and also signal the moving forward of a society through institutional change.

Criticisms
Although there is not much opposition to the theory or ideological basis for restorative or transformative justice, there is some contention as to whether or not it will work in practice. Some views on this are represented by Levrant, who thinks that the acceptance of restorative justice is based more on “humanistic sentiments” rather than restorative justice’s effectiveness. According to Morris, some of the most common criticisms that used against the practicality or realism of restorative justice are:

"...restorative justice erodes legal rights; restorative justice results in net-widening; restorative justice trivializes crime (particularly men’s violence against women); restorative justice fails to ‘restore’ victims and offenders; restorative justice fails to effect real change and to prevent recidivism; restorative justice results in discriminatory outcomes; restorative justice extends police powers; restorative justice leaves power imbalances untouched; restorative justice leads to vigilantism; restorative justice lacks legitimacy; and restorative justice fails to provide ‘justice’."

Another critique of restorative justice suggests that professionals are often left out of the restorative justice conversation. Albert W. Dzur and Susan M. Olson argue that this sector of justice cannot be successful without professionals. They claim that professionals can aid in avoiding problems that come up with informal justice and propose the theory of democratic professionalism, where professionals are not just agents of the state – as traditional understandings would suggest – but as mediums, promoting community involvement while still protecting individuals’ rights.

Additionally, some critics like Gregory Shank and Paul Takagi see restorative justice as an incomplete model in that it fails to fix the fundamental, structural inequalities that make certain people more likely to be offenders than others. They question the structure of society and the fairness of institutional systems at their very core, pushing for more understanding of root causes.

Mass media
A recent increased public awareness of alternatives to the classic prison system has created favorable social climate for the growth of restorative justice in the public domain. The growth of the victim identity and victimization of our society has created satisfactory conditions for public acceptance of the ideas of restorative justice, especially through mass media. Studies by Kelly M. Richards have shown that the general public would be open to the idea of alternative forms of justice only after the idea has been explicitly explained to them. According to other studies performed by Vicky De Mesmaecker, in order for restorative justice to become publicly accepted, there must be an effective public relations collaboration between the media and the criminologists.

The use of forgiveness as a tool has in the restorative justice programs, run for victims and perpetrators of Rwandan genocide, the violence in Israeli–Palestinian conflict, and Northern Ireland conflict, has also been documented in film, Beyond Right and Wrong: Stories of Justice and Forgiveness (2012).