Restorative Justice includes activities such as victim-offender mediation, family group conferences, restorative conferences, sentencing circles and community reparation boards.
Defining restorative justice
Restorative justice has been defined as both a set of values and practices, but also as a set of processes and even outcomes. There is no agreement on how to define the concept.
The goal of restorative justice for those focusing on values is to ‘cement a common set of core values and ethics’ (Shapland 2014).
Others prefer to define restorative justice in more concrete terms, as a set of practices, as this makes it easier to research.
Home Office researcher Tony Marshall defines restorative justice as a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.
In this definition restorative justice is both a practice, as people come together, and it includes a forward looking element. It is also a process involving dialogue, and an outcome, people agreeing on what should be done to repair the harm done by the offence.
Including an outcome as part of a definition is a problem because this means the definition may not be inclusive enough. For example in some restorative practices the victims may not consent to the outcomes.
A more useful definition may thus be provided by Daly (2016)…
“Restorative justice is a contemporary justice mechanism to address crime, disputes, and bounded community conflict. The mechanism is a meeting (or several meetings) of affected individuals, facilitated by one or more impartial people. Meetings can take place at all phases of the criminal process, pre-arrest, diversion from court, pre-sentence, and post-sentence, as well as for offending or conflicts not reported to the police. Specific practices will vary, depending on context, but are guided by rules and procedures that align with what is appropriate in the context of the crime, dispute, or bounded conflict.”
This definition is a practice and a process but not a value or an outcome. The core elements in this definition are
- Lay encounters
- Expresses narratives
- Ritual dynamics
Lay encounters
Restorative Justice practices empower lay people – victims, families, friends and community members – to actively participate in the process.
This stands in contrast to traditional justice mechanisms in industrial societies, Usually the State takes control of justice through professional bureaucracies, denying communities any say in the process.
It is a bottom-up encounter where lay people interact to address the specific impacts of a particular criminal offence or conflict. The main forms this encounter can take include victim-offender mediation, family group conferencing and circle sentencing.
Victim-offender mediation, found in North America and Europe, involves an encounter between victim and offender, convened by a neutral third party facilitator.
Family group conferencing, mainly found in New Zealand and Australia, involves a larger circle: victims, offenders and direct stakeholders such as family, friends and respected community members.
Circle sentencing, usually found in North America, Australia and New Zealand is normally embedded within communities. It is especially common among First Nations peoples and includes the offender, victims, community elders, justices and other criminal justice officials.
While community members are involved, so are professionals such as facilitators, social workers, the police and probation officers.
Narrative Expression
Restorative Justice allows victims and offenders to tell their stories in their own words. It involves the development of a narrative that articulates the voices of lay people. Most encounters involve a carefully designed and managed script. As a bare minimum this process of narrative expression should involve:
- The facilitator asks the offender to describe the events leading up to the offence and the details of it.
- Then the victim and other participants speak about they have been affected
- The facilitator asks the offender how they have been affected and what they have heard.
The expression of emotion is central to the restorative justice process and two narratives emerge: harm and accountability.
The narrative of harm emerges that allows victims to articulate the impact of the offence in their own words.
The narrative of accountability allows the offender to accept responsibility and express remorse
This is very different to the ‘hegemonic tales’ that dominate in courtroom interactions (Ewick and Silbey, 1995).
Victims may be allowed to speak in court, often through a victim statement, but this isn’t the same as a narrative that is co-produced and negotiated.
Offenders and other people are usually excluded from speaking. When they do they are obliged to speak in the alien formal language of the court.
Ritual Dynamics
It is widely acknowledged by sociologists and anthropologists that rituals play an important role in social life. (Durkheim 1995, Douglas 1984). As Durkheim pointed out over a century ago, rituals are important as they help people to make sense of a society’s collective values and give structure to otherwise shapeless social events. Rituals also provide social solidarity and help sustain a belief in a moral order.
Criminologists have noted that most criminal justice systems have developed increasingly sophisticated ‘degradation rituals’ to mark the guilt and punishment of an offender (Garfkinkel 1956). However, unlike other social institutions, criminal justice fails to provide corresponding ‘reintegrative rituals’. Restorative Justice allows for the performance of these reintegrative rituals.
The aspects of restorative justice rituals that make them unique are staging, choreography, casting, scripting and symbols.
- There are clear physical boundaries: participants usually sit in a circle with no hierarchy. There is a clear delineation between who is part of the circle and who is an outsider. This sets it apart from the adversarial settings of a court.
- Facilitators make an effort to design a seating arrangement that supports vulnerable parties and maximises interaction.
- Effort goes into encouraging a ‘community of care.’
The process usually encourages some kind of agreement that reflects the consensus reached. The steps the offenders are to make to right the harms they have done are usually written down and signed by all present.
There will be variation in restorative justice processes. They will vary depending on the nature of the offence and who is involved.
Restorative values, principles and standards
Braithwaite (2008) distinguished between procedural standards and outcome standards.
Constraining standards
Constraining standards include empowerment, non-domination and accountability. These must be honoured as ‘fundamental procedural safeguards’.
Maximising standards
Maximising standards include restoration of relationships, emotional restoration, and the prevention of future injustice, usually interpreted as a reduction in offending. Maximising standards are conditional on the desires and capabilities of the parties.
Emergent standards
Emergent standards include remorse, apology, censure of act, forgiveness and mercy. These can only emerge organically, they can’t really be actively encouraged like maximising standards. For instance, a victim of crime should never be required to express forgiveness just an offender should never be compelled to show remorse, as this would violate the constraining standards of non-domination and empowerment.
Visually, constraining standards would be at the basis of a pyramid, they form the basis on which any restorative justice encounter is built upon..
Restorative Justice mechanisms are ritual dynamics, lay encounters and expressive narratives.
Depending on the dynamics in a session, maximising standards may be encouraged and emergent standards may emerge.
Braithwaite (2022) has argued that both crime and justice can be experienced as forms of domination. He sets out a theory of justice that is based on freedom as foundational in the fight against domination.
This concept of freedom here is located within a republican conception that is respectful, inclusive and intolerant to all forms of domination.
Restorative Justice values also reflect a deeply relational way of doing justice. This reflects a long history of indigenous and feminist ways of seeing and knowing the world. This takes as a starting point that we live in relations with others, and transforming these, both on a micro and macro level is central.
Explanatory theories of how restorative justice works
A number of criminological theories attempt to account for some of the claims made by restorative justice advocates. The three main theories are:
- Shame theories
- Procedural Justice Theory
- Ritual theories.
Shame theories
Shame is the central emotion around which restorative justice is built. Braithwaite’s reintegrative shaming theory is the most well-known theoretical foundation for restorative justice.
In his groundbreaking Crime, Shame and Reintegration (1989) Braithwaite makes the distinction between stigmatic and reintegrative shaming.
Braithwaite demonstrates that most criminal justice processes shame both the act and the offender. This effectively ostracises the offender from the community making it difficult for them to reconnect.
Reintegrative shaming however shames the act but allows the offender a chance to express remorse and be welcomed back into the community.
Reintegrative shaming allows for a community to strengthen social bonds and allows remorse, apology, mercy and forgiveness to emerge.
Scheff and Retzinger (1991) have suggested that shame is a repressed emotion in contemporary society. Thus we are often ashamed about feeling shame. If an offender is ashamed about committing a crime he will feel worse because of the shame about feeling ashamed. This can lead to further aggression, violence and general dysfunctional behaviour.
Restorative Justice may work because it allows for both the offender and victims to express their shame, to openly feel it, and work through this, thus breaking the above negative cycle.
Procedural justice theory
Respect lies at the heart of procedural justice theory. If citizens feel that their treatment at the hands of authority figures is fair, inclusive and respectful, they are more likely to obey the law.
Defiance can result in a rejection of the law and future offending when an offender views a sanction as illegitimate, has weak bonds to the sanctioning agent, or denies his or her shame in an offence. Deterrence, on the other hand, is more likely if the sanctions are regarded as legitimate, offenders express shame for their actions and they have strong bonds to mainstream society.
The voluntary nature, deliberative structure and encouragement of stakeholder participation in restorative justice can lead to increased perceptions of fairness, legitimacy and social bonding (Tyler 2006).
Ritual theories
Ritual theories argue that one’s sense of morals, community bonds, and the self are a function of the rituals in which one partakes, both sacred and profane.
The restorative justice ritual brings together victims and offenders, their emotions, and their stories to produce solidarity and other conciliatory emotions. (Rosner 2013).
When bringing people together in a face-to-face encounter with clear barriers to outsiders and a shared focus of attention, a certain rhythm will build up between participants as they become more in sync with each other’s emotions and perspectives. This rhythm leads to entrainment – people are focused on and feel connected to each other akin to Durkheim’s notion of collective effervescence. Solidarity and shared emotion may then be demonstrated through expression of apology and forgiveness and symbolic integration through handshakes, eye contact and hugs.
This is a particularly striking type of ritual when one considers the asymmetrical degradation rituals of Court.
Bolitho (2017) draws on the concept of memory reconsolidation to explore how restorative justice can help victims. Through the ritualised act of telling one’s story within the supportive and structured confines of restorative justice circles a victim may rewrite a harmful emotional memory substituting it with the positive emotions experienced during the restorative encounters.
Empirical research on restorative justice
Restorative justice has been subjected to an enormous amount of empirical research, perhaps more than any other criminal justice innovation in recent history. More recent studies draw on randomised control trials.
Participant experiences with restorative justice
Research suggests that respect, accountability, empowerment, non-domination, apology and forgiveness are experienced on average in greater quantities by participants in restorative justice conferences compared to those whose cases end up in traditional courts.
Both offenders and victims perceive restorative justice as a more satisfying and legitimate process than that which is offered in the courtroom. Offenders who participate in restorative justice have a better understanding of what is happening, are more actively involved with their case and are more likely to report that they are treated with respect and fairness. Restorative justice conferences can also result in a higher frequency and amount of restitution paid to victims.
In a comprehensive study of restorative justice for British offenders Chaplin and colleagues (2007) reported that the large majority of victims and offenders found the process to be useful, felt a sense of closure and were more satisfied with their procedures and those who went to court. Notably those whose offences were more serious were significantly more likely to find their conferences useful compared to those who committed less serious offences.
Research from Australia examining the role of shame in restorative justice reports that offenders who participate in conferences experienced both reintegrative and stigmatic shame in higher quantities than offenders who go to court.
Healing victims
Victims who meet their offender and receive an apology are more forgiving, feel more sympathetic towards the offender and are less likely to desire physical revenge. Paulsons (2003) early review of restorative justice illustrates a range of positive psychological outcomes for victims.
Randomised trials in Great Britain provide strong evidence of increased well-being for victims who meet with their offender compared to victims who do not.
A minority of victims and offenders feel worse after a conference specifically when they reported not being involved or disrespected.
A minority of participants that were unhappy with their conference pointed to instances where they felt they were not being taken seriously or where they felt uninformed or not Included. When victims are unhappy with their experience it is often when they feel little attention has been paid to the process and most of the focus is on developing suitable outcomes for the offender.
Reoffending
The best research on restorative Justice and reoffending shows a modest but consistent positive effect on recidivism reduction. However much research on restorative justice and recidivism has been hindered by the lack of an adequate comparison groupS, little statistical power or other methodological issues.
Early reviews of the evidence on restorative justice resulted in cautiously optimistic conclusions about its effectiveness (Braithwaite 2002).
All studies conclude that restorative justice, compared to court, results in a modest reduction in offending. There is also a secondary benefit of a reduction in the desire for revenge by victims, possibly resulting in a reduction in revenge crimes.
Strang et al (2013) report on a systematic review of the most rigorous randomised control trials. This analysis indicated restorative justice may be more effective for violent crime than for property crime and for adults rather than for young offenders.
There is also evidence that Restorative Justice is cost effective compared to court.
Not all RJ conferences are the same. It is more likely to be successful when…
- offenders are remorseful.
- an outcome was agreed by consensus.
- when offenders report it has been useful in helping them realise the harm their offences had done.
- Also high intensity emotional conferences result in a greater reduction in reoffending.
One needs to be careful about generalising from the findings on restorative justice and realise it only works when done well, however such settings are difficult to replicate!
The Future of Restorative Justice
The United Kingdom government has committed to invest millions of pounds in restorative justice processes. However a 2020 review found that only 5.5% of victims were offered the opportunity to meet their offender.
Lack of government investment aside, there is ground-up expansion, Braithwaite (2021) refers to restorative justice as a street level meta strategy, with initiatives springing up in many areas:
- Sexual violence
- Hate crime
- Environmental harm
- Declaration and the movement for racial justice.
Potential barriers to the evolution of restorative justice
Restorative justice needs support, it’s been ‘about to take off’ since the 1980s.
We need to keep evaluating it as it expands. It doesn’t work all the time. Hurdles need to be overcome for it to be successful.
There is a tension between institutionalising community justice which may undermine its spirit!
This material is mainly relevant to the crime and deviance module.
Restorative Justice is most closely associated with Left Realism.
This post was written using the Oxford Criminology Handbook (2015) Liebling et al.