Restorative Justice

17.1 Restorative Justice: A Paradigm Shift

• Definition: Restorative justice is defined as a social movement that affects the understanding and response to crime and conflict in diverse global communities (Umbriet et al., 2005).

• Momentum: Since the 1970s, restorative justice has gained significant traction in Canada as an alternative or supplementary approach to contemporary criminal justice.

• Influences: It draws on various values, principles, and practices from:

  • Indigenous ways of knowing

  • Faith-based traditions

  • Peacemaking criminology

  • Victims’ Rights Movement

  • Penal abolition

  • Community justice initiatives

• Focus: Aims primarily at healing individuals and relationships by promoting:

  • Meaningful accountability

  • Collaborative dialogue

  • Empowerment of offenders, victims, and communities

• Scholarly Context: Restorative justice is part of critical criminology and closely relates to transformative justice, which emphasizes the need to change social structures that uphold injustice and inequality.

• Howard Zehr's Contribution: Affectionately known as the “grandfather of restorative justice,” Zehr argues for a paradigm shift in viewing the legal system, focusing on rethinking punishment and retribution. He posits that a new “lens” is required to address the dysfunction in the current criminal justice system, advocating for a restorative approach in personal lives and community interactions.

• Characteristics of Restorative Justice:

  • Inclusive and problem-solving focus

  • Involves accountability, dialogue, and reparation

  • Challenges existing justice structures

  • Advocates for a different approach to conflict

  • Envisions a transformed view of conflict, harm, and punishment

17.2 Justice as Healing

• Comparison with Retributive Justice: Restorative justice contrasts with punitive justice; however, the distinction is oversimplified since both can coexist.

• Goals of the Legal System: While primarily focused on punishment and deterrence, the legal system also aims at:

  • Offender treatment

  • Rehabilitation

• Sentencing Purposes: According to Section 718 of the Canadian Criminal Code, judges must consider several objectives when sentencing, including:

  • Denunciation

  • Deterrence

  • Protection of the public

  • Rehabilitation

  • Reparation

  • Responsibility

• Public Dissatisfaction: Many victims and offenders express dissatisfaction with the legal system, as supported by research indicating widespread dissatisfaction among Canadians. This is illustrated in Figure 17.1 showing confidence levels in various institutions including the legal system.

  • Resources: Statcan reports provide data on victim reporting and public support for restorative justice initiatives.

• Core Principles of Restorative Justice:

  • Puts victims' needs at the forefront of the justice process

  • Promotes community engagement

  • Shifts focus from rules to emotional and relational dimensions of crime (Pranis et al., 2003).

17.3 The Aims of Restorative Justice

• Difference with Traditional Approaches: Restorative justice is distinct from rehabilitation and retribution, focusing on interpersonal harm rather than punishment alone.

• Rehabilitation:

  • A principle that aims at reducing the risk of future harm from offenders by addressing behavioral causes.

  • Interventions may include group therapy, anger management, etc., and are available in prisons and communities.

• Retribution:

  • Focuses on imposing discomfort as a deterrent and teaching offenders a lesson, without considering the relationships harmed by crime.

  • Forms include incarceration, probation, fines.

• Restorative Justice Focus:

  • Emphasizes relations between individuals affected by crime, as outlined in relational theory. - This theory asserts relationships are essential for the self. Restorative justice addresses relationships impacted by crime, striving to re-establish them.

• Compatibility of Approaches:

  • Restorative justice can complement rehabilitation efforts and may be employed at various criminal justice stages:

  • Pre-charge

  • Post-charge/pre-conviction

  • Post-conviction/pre-sentence

  • Post-sentence/pre-reintegration

• Community-based Initiatives: Restorative processes can occur outside the criminal justice system, allowing individuals to seek justice without involving police. Many reasons exist for this choice, such as a lack of trust in law enforcement.

17.4 Restorative & Transformative Justice: Definitions and Conceptions

• Restorative Justice Definition: An approach aiming to collectively address harms, needs, and obligations arising from an offense to achieve healing (Zehr, 2015). This involves interaction and needs stemming from systemic injustices.

• Transformative Potential:

  • Braithwaite (2003) highlights the capability of restorative justice to transform legal systems and social environments.

  • Harris (2004) emphasizes its focus on relational factors, suggesting that harms arise from interconnected circumstances leading to offenses.

• Comprehensive Restorative Justice: Seen as transformative for social, economic, and political relations, enhancing the recognition of human worth beyond mere legal definitions.

• Diverse Definitions: - Johnstone and Van Ness (2007) categorize definitions into three conceptions: encounter, reparative, and transformative.

  • Common elements include collaboration, dialogue, healing, and restoration.

17.5 Justice Stakeholders

• Key Stakeholders: The restorative process includes three crucial stakeholders: victims, offenders, and community.

• Victims' Involvement:

  • Current systems often fail to support victims adequately, leading to secondary victimization.

  • Restorative justice centers on victim needs and aims to provide:

  • Enhanced participation

  • Recognition of harm and its consequences

  • A supportive process enabling victims to control their justice experience

• Offenders' Responsibilities:

  • Offenders must acknowledge their actions and strive to repair both material and symbolic harm.

  • Community support is essential for addressing the obligations that emerge from harm.

• Community Engagement:

  • Community plays a crucial role in supporting those affected by harm and ensuring accountability.

  • Community responses must reconcile obligations and might include various supportive actions.

  • Data highlights how community involvement in restorative processes can enhance safety and reduce re-offending.

17.6 Restorative Justice Models

• Criteria for Successful Processes:

  • The offender must accept their responsibility and be willing to make reparations.

  • Participation by victims and community members is voluntary.

• Processes Include:

  • Victim-Offender Dialogue: Facilitated discussions focus on harm and reparative steps.

  • Conferencing: Involves broader participation to support reparative discussions and agreements.

  • Circles: Indigenous and non-Indigenous approaches aimed at reintegration and community involvement in resolving conflicts.

17.7 Restorative Justice & Indigenous Ways of Knowing

• Distinctions: It is crucial to differentiate traditional Indigenous practices from mainstream restorative justice.

• Cultural Differences: Proactive strategies rooted in kinship networks highlight unique aspects of Indigenous legal traditions.

• Opportunities for Dialogue: Engaging with Indigenous practices offers mutual insights into justice and conflict resolution.

• Self-determination: Recognition of Indigenous practices allows for the development of justice strategies that resonate with their cultural values, emphasizing self-governance.

17.8 Benefits & Critiques of Restorative Justice

• Benefits for Stakeholders:

  • Victims:

  • Direct accountability, engagement in the process, and a sense of community support.

  • Potentially increased satisfaction with justice outcomes.

  • Offenders:

  • Opportunities for accountability and community reintegration.

  • Community:

  • Strengthened relationships and reduced fear of crime.

• Limitations and Critiques:

  • Perception as too lenient on crime.

  • Challenges in integrating restorative justice within the existing legal framework.

  • Risk of net widening, engaging more individuals in the justice process than necessary.

  • Potential for coercive practices limiting volunteers' autonomy in choosing restorative processes.

  • Concerns for appropriating cultural practices without proper respect.

17.9 Conclusion

• Alternative Vision of Justice: While restorative justice does not solve all legal system issues, it balances the needs of all stakeholders well.

• Positive Outcomes: Studies indicate restorative justice leads to reduced recidivism and increased satisfaction among victims (Sherman & Strang, 2007).

• Integrative Potential: Awareness of restorative principles can enhance various sectors within the criminal justice system, promoting innovative and healing approaches to harm.

LECTURE NOTES

AN OVERVIEW:

Restorative, transformative justice

• is part of the critical tradition in criminology

• argues for a paradigm shift in criminal justice 

• argues for changes to the social structures that perpetuate injustice and inequality

RESTORATIVE JUSTICE: A PARADIGM SHIFT

• Has gained tremendous momentum in Canada as an alternative or addition to contemporary criminal justice since the 1970’s

• Informed by values, principles, and practices from a variety of sources including Indigenous ways of knowing

• Primary focus on healing people and relationships

• Promotes meaningful accountability, collaborative dialogue, and empowerment of offenders, victims and communities

Critical Criminology

• Need to change social structures that perpetuate injustice and inequality

Restorative Justice Paradigm involves:

• Inclusiveness

• Problem solving focus

• Accountability

• Dialogue

• Reparation

• Pursuit of healing and righting relationships

Restorative Justice challenges existing justice structures and advocates for a different approach to conflict

JUSTICE AS HEALING

• Opposite of retributive or punitive justice, but not that simple

• Restorative justice and the current system are not mutually exclusive

While sentencing principles laid out in S.718 of the Criminal Code include punishment and deterrence, the following are also considered by judges:

• Offender treatment

• Rehabilitation

• Reparation

• Responsibility

SUPPORT FOR RESTORATIVE JUSTICE

Canadian support for restorative justice is growing as restorative justice focuses on:

• Victims’ needs

• Community engagement

• Inclusive and collaborative processes

• Emotional and relational dimensions of crime

COMPARISONS OF JUSTICE

*good short answer question that may be in the exam (go over this when studying for the final)

QUESTIONS ASKED

IN THE CRIMINAL JUSTICE SYSTEM, RJ PROCESSES CAN…

Restorative Justice (RJ) can occur in collaboration with the CJ system at any time:

• pre-charge

• post-charge/pre-conviction

• post convictions/pre-sentence

• post-sentence

RESTORATIVE JUSTICE - OUTSIDE OF THE CRIMINAL JUSTICE SYSTEM

Restorative justice can occur interdependently of the CJS in many ways:

1. self-referral option for victims to contact a community-based RJ program on their own

2. within Indigenous communitie through their Nation’s justice program

            - culturally responsive

            - avoids colonially-based legal system

            - reclaiming responsibility for justice practices is an important component of self-determination and self governance

3. for interpersonal harm in the community, schools, or workplaces

4. to address harm in the aftermath of genocide, governmental issues, and/or apartheid

AIMS OF RESTORATIVE JUSTIVE

• Restorative justice is a relational theory of justice

• Rehabilitation involves interventions that focus on reducing the risk that perpetrators will cause harm in the future

• Retribution seeks to impose proportional discomfort to “teach a lesson” and deter future crime

RJ, however, aims to address the relationships that have been harmed - between victims and offender or those within families and communities

JUSTICE STAKEHOLDERS

Restorative justice aims to meaningfully include 3 stakeholders:

1. Victims (primary and secondary)

            - secondary victim: harm that somebody may experience after they reported the crime

2. Offenders

3. Community (geographic and social)

            - communicating the harm that has occurred, supporting the reparation aggreements, create a safe environment for all community members including victims and offenders, etc.

*more in textbook, make sure to look over 

TYPES AND DEGREES OF RESTORATIVE JUSTICE PRACTICE

*chart in the textbook/slides (make sure to look over) 

• to be fully restorative, all three have to be involved in the process

RESTORATIVE JUSTICE MODELS

Criteria to move forward with RJ

• the person who caused harm must accept responsibility for their actions and be open to making reparation

• the victim/survivor must participate voluntarily and be provided voice and choice in how the process will unfold

• community members might also be included

        - they must be informed and prepared to ensure the process itself upholds the values of respect, honesty, accountability, and safety

Victim Offender Dialogue

• involves facilitating between the victim/survivor and the people who caused them harm

• can be direct or through messages

• there is a facilitator 

• prioritizes emotional and physical safety

• aim to gain a better understanding of what happened and what reparations are needed to move forward

Conferencing

• similar to victim offender dialogue, may involve more participants like family members, youth councillors, teachers, etc.

• participants come together again to talk about everything and what happened and what can be done forward

Peacemaking Circles

• more rooted in Indigenous traditional ways

• process that may bring victims, offenders, community, elders, police, etc. to reintigrate people following crime or instead of following a formal court process

• bring in more holistic elements (mental, emotional, spiritiual health)

• may include prayers, smudging, and other cultural practices

• can be used by Indigenous people and non-Indigenous peoples

*look over, makes a good exam question (more in the textbook)

BENEFITS OF RM

CRITIQUES OF RM

• Lack of support and awareness within the criminal justice system and among the general public

            - some people perceive that it is “soft on crime”

• Practical and cost concerns of shifting an entire criminal justice system to a new paradigm

            - does not work for all cases

• Net widening - the unintended consequence of criminal justice reforms that result in a greater number of people being controlled by the system, often by applying sanctions to individuals who would have otherwise received a lighter penalty or no penalty at all

• Possible risks - inconsistent process with lack of universal process, looks different based on community, etc. 

SUMMARY & CONCLUSIONS

• Offers an alternative version of justice that balances needs of offenders, victims, and offenders

• Research demonstrates positive results in Canada and globally in

• Widens the justice lens to offer innovative, collaborative, and healing approaches to harm

• Benefits of restorative justice are plentiful and awareness of these principles can be integrated across all areas of the criminal justice system