The Effects of Restorative Justice Programming: A Review of the Empirical

2. BRIEF OVERVIEW OF RESTORATIVE JUSTICE

The following overview is offered to provide an initial context for interpreting and discussing the research results. Numerous academic articles, books and government papers provide a detailed analysis of the theoretical underpinnings and principles of restorative justice. This paper, on the other hand, is designed to provide a comprehensive examination of empirically-based research into the outcomes of restorative practices and is not a critique of the restorative justice paradigm. While there are certain ethical and legal issues that are important to examine through systematic research, such as power differentials among participants, biased referral processes, and lack of legal representation, it is beyond the scope of this paper.

2.1 Historical perspective

The thrust toward a more community- and victim-based system of justice is not a new phenomenon, but rather a resurgence of a historically prevalent approach to crime and conflict. Zehr (1985) asserted that our current criminal justice paradigm, “which we consider so natural, so logical, has in fact governed our understanding of crime and justice for only a few centuries” (p. 6-7). It is a non-judicial and non-legal community-based approach that has dominated Western history. Braithwaite (1997) maintains that restorative justice has been the dominant model of criminal justice throughout most of human history. Therefore, a historical perspective represents a discussion of the events that led to a re-emergence of restorative principles.

During the 1970s there was a movement among prisoners’ advocates and academics to protect the rights of offenders, to restrict the use of incarceration and to improve the conditions within institutions. This was driven by an increasing understanding within the social sciences that criminal behaviour was, in a large part, a result of adverse social conditions. This understanding coincided with a movement away from adversarial litigation as the only method of resolving conflict. Processes such as mediation, arbitration and negotiation became more common in civil and family law. Moreover, there was an increasing demand on the justice system to offer a more substantive voice and to provide a more formalised role for victims in the criminal justice process.

In 1974, the first victim-offender mediation program occurred in Canada when two offenders charged with vandalism met with their victims to establish restitution agreements. Since that time, a number of similar programs have been developed throughout Canada and internationally.  Certain principles of restorative justice, such as forgiveness and reparation, are fundamental concepts within Judaic and Christian faiths and, as such, these communities also began to actively promote and implement restorative practices. The roots of restorative justice models also stem from traditional Aboriginal methods of conflict resolution that rely on community involvement and the implementation of holistic solutions. The continued overrepresentation of Aboriginal peoples in correctional institutions in Canada has led to demands for more traditional approaches, such as sentencing circles, for Aboriginal offenders.

This movement recently received further impetus from three important developments in Canada. First, statutory recognition of the importance of alternatives to incarceration came with the proclamation of Bill C-41. Second, the importance of addressing the special needs of aboriginal offenders and reducing reliance on incarceration was noted by the Supreme Court of Canada in R. v. Gladue. Third, the 1999 federal Speech from the Throne contained an explicit acknowledgement of the importance of restorative justice in Canadian society.

2.2 Theoretical basis

The resulting amalgamation of practice and principle resulted in a more comprehensive approach to crime involving offenders, victims and the community. Restorative justice requires not only a change in practice, but also a transformation in thinking. This philosophical shift is best illustrated through an examination of the current definition of criminal behaviour. Within modern legal discourse, a crime is defined as a wrong against the state. Accordingly, a representative of the state prosecutes an individual accused of having committed a crime. The critical point of contention is the failure of this definition to recognise the victim. It is the victim that experiences the actual harm caused by a crime. Restorative justice advances a more victim-centred definition of criminal behaviour wherein the harm or wrong is against the individual rather than the state.  Once the problem is redefined, current solutions become inadequate. The victim, who has a critical stake in the process, requires input and meaningful participation as well as reparation.

Restorative justice models are based upon several overarching principles. First, crime is primarily a conflict between individuals, resulting in harm to victims and communities and to offenders. It is only secondarily a transgression against the state. This simple notion has profound consequences as demonstrated by the previous discussion on defining crime. Second, the central goal of the criminal justice system should be to reconcile victims, offenders and their communities while repairing the harm caused by the criminal behaviour. That is not to say that public safety is not paramount. Rather, it is the method of achieving public safety that is under debate. Third, the criminal justice process should facilitate active participation by victims, offenders and their communities. This results in a diminished role for the state.

In theory, there maybe several benefits to restorative justice practices. For victims, restorative justice offers individuals a meaningful voice in the process, and serves several crucial human needs, including the need to be consulted and the need to be understood. In some cases, the victim may also experience satisfaction from playing a part in preventing future criminal behaviour and from receiving reparation. For offenders, the process can be therapeutic as they take responsibility for their actions and take steps to repair the harm. For community members, the process serves to humanise the criminal justice system and reduce fear of crime by providing more accurate information about offenders and crime in general. Restorative justice also provides community members with a voice in the criminal justice process. Restorative justice has been described as an empowering experience for all participants in the triad.

2.3 Practice Models

The resulting practice models based upon these principles can be grouped into three categories–circles, conferences and victim-offender mediations. These categories, while usually presented as distinct, are somewhat artificial in that the structure and practices often overlap or are quite similar. In general, restorative justice programs bring together the victim, the offender and community representation to collectively attempt to devise a solution that repairs the harm of crime.

In victim-offender mediation, the community has a less significant role, as the mediator is typically the only community member present. Participants meet and discuss the crime, its effects on their lives and possible steps towards restoration. The community is provided with an enhanced role in conferencing, which is essentially an extension of mediation to include a wider range of participants. Circles, which are similar in size to conferences, are rooted in traditional Aboriginal culture as a method for solving disputes and often include community elders. Circles usually occur after a conviction has been recorded and are used in a sentencing context rather than as an alternative to the justice system (i.e., diversion).

2.4 Entry points

The criminal justice system contains four specific entry points for the initiation of restorative justice practices. Figure 2.1 demonstrates this continuum.

Figure 2.1. Entry Points in the Criminal Justice System

Entry Points in the Criminal Justice System

POLICE CROWN COURTS CORRECTIONS
pre-charge post-charge post-conviction post-sentence
pre-conviction pre-sentence pre-reintegration

At any one of these four points, offenders can be referred to a restorative justice program. Rather than conceptualising restorative justice as an alternative system, this model integrates the principles of restorative justice into the current justice system. The more serious the offence, the more likely the case will be referred later in the process. It is therefore assumed that research might provide differing results based upon the entry point of the program more so than differing practice models or approaches. Furthermore, the effects of restorative justice programs may be ‘diluted’ by the level of integration of the offender and the victim into the traditional system.