Can restorative justice become too routine?
Mar 09, 2010
I feel a little strange asking this question, especially considering the work of advocates to see restorative justice become more wide spread. But, this is something that I’ve been pondering for a while and even more after seeing a brief news item about a defendant being referred to a pre-sentence restorative process for a “careless driving causing death” charge. The news item is short and I don’t know all the issues surrounding the case, but it gave me pause since the victim who died was the son of the defendant.
I began asking questions about who the victim would be in such a case. As the news item says, the defendant and her family all have to deal with the reality of the loss. While I can see some definite benefits for this family of coming together to discuss the incident and its affects on each of their lives, I also feel for this mother who is “offender” and “victim” at the same time. It just seems that the process will have to be different to respond to the needs of participants.
The real question is, "What's the purpose of the restorative encounter?"
I’ve thought about this with some cases I’ve received as a volunteer restorative conferencing facilitator. The jurisdiction I volunteer in only allows for restorative justice post-sentence. I’ve written before about the issues and questions involved in ordering a restorative process as a part of the sentence. These include the lack of voluntariness, lack of options for victims, etc. But also, I think “restorative justice” can become routine, another box to tick off in terms of service such as ordering anger management and substance abuse screening.
I’ve wondered this as I talked with defendants who denied guilt although they had either been found or plead guilty. I’m not talking about defendants who deny that their actions caused harm (this can actually be dealt with in conference) but defendants that say that they didn’t commit the crime. Yet, there is an expectation on the part of the courts and some restorative justice advocates that these individuals will go through a restorative process with their victims.
Obviously, there are a couple of problems with this. First, there is a lack of voluntariness for defendants. Secondly, for a restorative process, the defendant or offender must accept responsibility for the actions. The process can’t move forward when this person claims complete innocence. Granted, this scenario is different from the case I mentioned above where the defendant is also a “grieving victim.” But, I wonder if both of these don’t point to a possible trap. I’m not sure but here are the questions that I’ve been pondering:
- Can we become so accustomed to cases going to restorative justice that we send referrals without keeping values in mind?
- Can a restorative process become just another “punishment” inflicted on the defendant along with other services such as anger management, counseling, and substance abuse treatment?
- At what point are we setting up a scenario that uses victims to impose a sanction on an offender?
I know others have written about the dangers of restorative justice being co-opted for purposes of the criminal justice system. I’m just wondering if that can become more of a danger when the restorative process becomes part of the sentence or simply another step in the sentencing process.