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Distinguishing Restorative Justice

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Berzins, Lorraine. "Perspectives on Achieving Satisfying Justice: The Challenge before Us.

Within a Canadian context, the author argues for a new approach to criminal justice that seeks an overall positive, healing purpose, for victims and communities as well as for offenders and their families, instead of the punitive, adversarial philosophy she claims exists.

Carruthers, David. Restorative Justice: A Judicial Perspective.

This document represents an address by David Carruthers, Chief District Court Judge of New Zealand, at the 2005 annual conference of Sacro. “Sacro� stands for “Safeguarding Communities – Reducing Offending.� Sacro is an organization aiming to promote community safety in Scotland through high quality services to reduce conflict and offending. From his perspective and experience as a judge, Carruthers reflects on restorative justice theory and practice in general, restorative justice in New Zealand (history and development of restorative justice in youth and adult settings, and the practice of restorative justice), and some common criticisms of restorative justice.

Dzur, Albert W. Civic implications of restorative justice theory: Citizen participation and criminal justice policy

Restorative justice, a normative theory and reform movement emphasizing dialogue and reconciliation between victim, offender, and community, is a widespread, if experimental, part of the practice of criminal justice in the United States. This essay argues that restorative justice draws connections between civic engagement and punishment practices that distinguish it as a normative theory of criminal justice. Advocates of restorative justice expect the growth of non-punitive attitudes and the weakening of support for incarceration to emerge from a public and lay-oriented context of adjudication. The role of lay participation in achieving social change, although prominent in restorative justice critiques of mainstream criminal justice norms and practices, has not been clearly articulated in practical terms. Significant ambiguities remain regarding the degree of lay participation, scope of authority, and the focus of restorative justice forums. The essay argues that an adequate assessment of restorative justice experiments should include an analysis of their impact on public attitudes towards crime and crime control policy and not simply on their impact on the specific victims and offenders involved. The link between less incarceration and restorative justice forums is public willingness to grant them the authority to hear and sanction offenses that would ordinarily receive incarceration. Whether and how they can influence broader public attitudes, then, is a critical test of restorative justice effectiveness. Author's abstract.

Erbe, Carsten. What is the Role of Professionals in Restorative Justice?

Carsten Erbe begins his chapter with a rather bleak assumption that every movement eventually 'sells out' to the perspective that it once opposed. Put another way, every movement finally comes to a point where it no longer represents what it once claimed to be. Erbe fears that restorative justice, though still a young movement, is in danger of crossing this 'irresistible threshold.' Key to his assessment is his characterization of restorative justice as essentially a community-based movement in direct opposition to the large-scale, institutional, and professional way of dealing with conflict and wrongdoing. Erbe argues in this chapter that recent developments in the restorative justice movement manifest a sharp turning away from this core value, the principle that the community 'owns' the process, not professionals.

Friesen, Krista. Beyond punishment: Moving towards the application of conciliatory justice in the Canadian context.

Contending that the conventional criminal justice system inadequately deals with the results of crime, and even adds to the damage inflicted by crime, Friesen urges an alternative system of justice. In contrast to what she sees as the adversarial, retributive character of conventional justice, she proposes restorative justice as a better alternative. Friesen sketches theoretical underpinnings for both conventional criminal justice and restorative justice. Her emphasis is on facilitated discussion or mediation between victim and offender. As examples she looks at truth and reconciliation commissions in response to violence in various countries. Her aim is to develop a model of mediation that can be applied successfully in a Canadian context.

Huculak, Bria. From the Power to Punish to the Power to Heal

In this discussion of sanctions, Huculak maintains that Canada uses imprisonment as a sanction second only to the United States of America in the western world. From its inception, imprisonment as a means of punishment for socially disapproved behavior has been a topic of concern and reform movements. Yet the prisons remain intact with greater numbers being built to meet the demand. The use of imprisonment as a legal sanction has a very complex conceptual base that is closely tied to the function and the purpose of law. The way a society deals with offenders has varied historically with diverse motivations: punishment; deterrence (both individually and general); retribution; the protection of society; incapacitation; humanitarianism; reform; treatment and rehabilitation. There is no consensus among contemporary authors as to the aims of legal sanctions. The philosophy of punishment has been described as a controversial, almost political subject. No doubt the concepts and methods used in dealing with offenders are interrelated and linked to the underlying view of crime and the criminal (free will vs. determination) which is bound up with the view of humans in the nature of society, culture, values and economics which are reflected in the law and other mechanisms of social control. Huculak goes on to discuss sentencing circles as an alternative to a punitive response to crime.

John Howard Society of Alberta. Restorative Justice

In this report, the John Howard Society of Alberta argues that restorative justice offers an alternative to Canada's current punitive justice system, which is unable to reduce crime rates and which manifests a lack of concern for crime victims. The restorative justice process involves the offender, the victim and the community in negotiations and dialogue aimed at restitution, reconciliation and restoration of harmony. Canada's current justice system, relying heavily on incarceration and punishment, does not rehabilitate offenders, deter others, or compensate victims. Restorative justice models lower costs associated with incarceration, provide the victim with a sense that justice was served, provide the offender with the feeling that the legal process has treated him or her fairly, address victim-offender relations, and make the community aware that it has a responsibility to the offender, victim, and justice system.

Johnstone, Gerry. How, and in What Terms, Should Restorative Justice be Conceived?

What is restorative justice? This is the question Gerry Johnstone asks at the beginning of his chapter in Critical Issues in Restorative Justice. Proponents advance a variety of ideas about the nature, scope, and aims of restorative justice. Most advocates construe it as an innovative way to understand and respond to crime, delinquency, and perhaps bullying. Some, however, sketch out a much more ambitious significance for the theory and application of restorative justice in society at large. To answer the question of what restorative justice is, Johnstone suggests that it is better to seek first what it is in the arena of criminal justice. Following this it may be possible to pursue the meaning of restorative justice in the wider sphere of society in general. With all of this in mind, Johnstone examines different perspectives on the nature of restorative justice even within the narrower scope of criminal justice. Then he discusses the question whether restorative justice is basically an alternative approach within criminal justice or is more broadly and perhaps more fundamentally an alternative life ethos.

Joseph, Christina. Philosophical, Religious and Contemporary ideas in the evolution of Justice

Christina Joseph prepared this document as a briefing paper for participants in a dialogue hosted by the Asia-Europe Foundation in 2004. As the title indicates, she surveys philosophical, religious, and contemporary ideas that cluster over time around the concept and pursuit of justice. She begins with an introduction to the concept of justice. This leads to a summary of major philosophical treatments of justice from Plato to Rawls. Joseph looks next at religious conceptions of justice in Confucianism, Buddhism, Judaism and Christianity, and Islam. Turning then to contemporary ideas about justice, she sketches the main systems of law in the world today, as well as current debates on social organization and justice. With emphasis on restorative justice, crime and social control, police and community, and global changes, Joseph concludes with a discussion of contemporary influences and future developments in the implementation of justice.

Kaptein, Hendrik and Malsch, Marijke. Crime, Victims, and Justice. Essays on Principles and Practice

This collection of essays has its origins in a conference called "Restorative Justice: Criminal Justice for Victims?" The conference was held in Amsterdam on 1 December 2000. Representing various fields - including law, psychiatry, philosophy, and the social sciences - the speakers at the conference were prominent scholars from Canada, the United Kingdom, and The Netherlands. This book contains updated editions of key papers from the conference, along with additional essays written specifically for inclusion in this volume. The central topics of the conference and the book are restorative justice, its relationships to current criminal justice systems, and its possible benefits for victims and offenders. More specifically, essays deal with a number of issues concerning victims of crime, issues such as victims' rights and needs, satisfaction for victims, compensation for victims, open justice, and punishment and retribution in relation to reparation. The contributors span a range from strong proponents of restorative justice to those who find the introduction of restorative justice into criminal justice processes problematical in significant ways.

Mantle, Greg and Dhami, Mandeep K and Fox, Darrell and Dhami, Mandeep K. Restorative Justice and Three Individual Theories of Crime

The conceptual relationship between restorative justice and punishment has already attracted a great deal of attention in the literature. A similarly rich body of work has considered the two main aims of punishment, retributivism and reductivism, in relation to criminological theories. It is surprising, therefore, that relatively little (direct) attention has been paid to the relation between restorative justice and theories of crime. This paper first reviews the concept of restorative justice, and then examines the affinities and tensions between restorative justice and three 'individual' criminological theories: classicism, individual positivism, and 'law and order' conservatism. These theories have been selected because of their significance in the development of present criminal justice policies. Author's abstract.

Marshall, Chris. Justice Grounded in Reality: The 2001 Ron Wiebe Award Ceremony Address.

Chris Marshall is a New Testament scholar. On November 23, 2001, he presented this address on restorative justice at the Ron Wiebe Award Ceremony at an event in Kingston, Ontario, sponsored by the Queen’s Theological College and the Correctional Service of Canada. In his address, Marshall began with a comparison of restorative justice efforts in New Zealand and Canada. This led to his exploration of three key issues: what is meant by “restorative justice�; what distinguishes restorative justice from retributive justice; and what makes restorative justice a viable alternative to retributive justice. Integral to this exploration is Marshall’s application of Christian truth claims about God, Jesus, and the nature of created reality (including human existence) to the meaning and practice of restorative justice.

McCold, Paul. Toward a Mid-Range Theory of Restorative Criminal Justice

According to Paul McCold, the practice of restorative justice is older than state justice, yet only recently has restorative justice been articulated theoretically. However, after more than two decades of theorizing by many people, there is little agreement about what restorative justice is and what it is not. Hence, restorative justice has come to mean so many things that it is difficult to say what exactly it does mean in theory and practice. McCold steps into this confusion and offers a “purist� model of restorative justice to clarify the principles of restorative justice. By “purist� he asserts a model that has only elements of the restorative justice paradigm and no elements of the “obedience� (retributive/deterrent) or treatment paradigms. On this basis, he then develops a mid-range theory of restorative justice. By “mid-range� he attempts a theory that does not explain all behavior but rather enough to encompass crime and wrongdoing and social responses to it. This leads to an analysis of stakeholders with respect to evaluation of the restorativeness of different models, and a typology to identify a continuum of practices from the partly to the fully restorative.

Mika, Harry and Zehr, Howard. A Restorative Framework for Community Justice Practice

Restorative justice has grown significantly in the past twenty years. Programs that use restorative justice perspectives and values are quite diverse in nature and wide-ranging around the world. Some are state-controlled and annexed to the formal justice system; others are community-based and comparatively independent of formal justice structures; many consist of a mixed model. Given all of this, restorative justice faces a number of risks: vague and careless use of the term to cover so many things that it becomes a meaningless term; subversion of restorative justice practices and aims within punitive or retributive perspectives, systems, and goals; and more. In this context, Mika and Zehr assert the need for clear articulation of the principles and values of restorative justice if it is to stay true to its vision and potential. They further contend that new measures must be developed to gauge the authenticity and impact of restorative justice. All of this requires dialogue and collaboration among victims, offenders, communities, and justice processionals. Hence, they seek to identify fundamental principles of restorative justice and to explore their implications for such critical dialogue.

O'Connell, Terry. Restorative justice for police: Foundations for change

O’Connell argues that current criminal justice systems do not work and that they must fundamentally change, with restorative justice providing the best hope.

Obold-Eshleman, Christa. Victims' Rights and the Danger of Domestication of the Restorative Justice Paradigm

Victims’ rights laws and restorative justice theory appear to converge in their mutual concern for reforming criminal justice to include the people most affected by a crime. However, asks Christa Obold-Eshleman, are victims’ rights laws truly compatible with restorative justice? She contends that the answer is complex and highly dependent on one’s view of the essence of restorative justice. Hence, Obold-Eshleman cautions those interested in the restorative justice model. She argues that a shift in the underlying theory of rights is necessary to arrive at a restorative conception of victims’ rights. To make her case, she first examines the basic ideas and philosophies of restorative justice. This leads to a discussion of the main concepts and provisions in victims’ rights laws. After analyzing victims’ rights concepts in the context of a restorative justice paradigm, she identifies points where proponents of restorative justice should embrace victims’ rights, and areas where restorative justice advocates should exercise more caution with respect to the formalization of victims’ rights.

Polk, Kenneth. Family Conferencing: Theoretical and Evaluative Questions

This paper discusses the recent juvenile justice diversion schemes involving family group conferences in New Zealand and Australia from their theoretical perspective and how they compare with previous juvenile justice reform efforts. Developmental and coercive justice institutional responses are compared and their limitations are presented. Polk distinguishes between integrative and reintegrative strategies, and calls for development of both approaches. It is suggested that FGCs are limited to the latter and describes the failure to involve primary institutions. Questions of the effectiveness of FGCs are raised.

Walgrave, Lode. Has Restorative Justice Appropriately Responded to Retribution Theory and Impulses?

Lode Walgrave observes at the outset of this chapter that no society can survive without rules and enforcement of those rules. In view of this, for centuries the mainstream response in the West to crime has been punishment or retribution by public authorities. Advocates of restorative justice have challenged that approach in recent decades. Along the way restorative justice itself has been challenged. One challenge has been to the opposition between retributive justice and restorative justice. Walgrave, therefore, examines the relationship between retribution and restoration. After clarifying the differences between punishment and restoration, he explores retribution as a major philosophical justification for criminal punishment. He retains one argument for punishment from this philosophical position: namely, punishment as censure of wrongful behavior. This leads to his contention that restoration is a more effective and more ethical way of censuring such behavior. Then, extending his argument through comparison of the essentials of retribution and restoration, he posits that restoration can be seen as a kind of reversed retribution.

Walgrave, Lode. Imposing Restoration Instead of Inflicting Pain

Lode Walgrave begins from the perspective that restorative justice fundamentally consists of doing justice by repairing the harm of crime inflicted on the victim and the community, and even social damage which the offender caused to himself or herself by the offense. Hence, in contrast to both punitive and rehabilitative justice, restorative justice is not primarily characterized by the kind of action to which the offender must submit. Indeed, restorative justice can proceed rather far without the involvement of the offender. In this view, the involvement of the offender is primarily a matter of enhancing the restoration of the victim and addressing public confidence. Only secondarily is it a matter of possibly influencing (i.e., deterring or rehabilitating) the offender. Furthermore, Walgrave states that the quality of restoration will be significantly improved if the offender cooperates freely. Nevertheless, for a variety of reasons, coercion may be needed and may be imposed by the judicial system. With all of this in mind, Walgrave devotes the majority of his paper to an examination of the coercive imposition of obligations on the offender in view of restoration. More specifically, he explores two significant issues: whether coerced restorative sanctions undermine the essential elements of the restorative approach; and whether a systemic, restorative approach to crime can be inserted into the principles of a constitutional state.

Wright, Martin and Foucault, Orlane. Community Involvement in Restorative Justice

It has been pointed out that there are differences between restorative justice and community justice. Restorative justice is primarily reactive, and tends to deal with individual cases; community justice looks not only at the wider effects of the crime after it has been committed, but also at the social pressures which lead people to commit crime. Its advocates would also maintain, however, that social reforms should be introduced because they improve everyon's quality of life, and not merely because they may reduce crime (Crawford and Clear 2001). This paper considers the idea that the advantages of restorative justice are even greater if it is also community-based (or "democratic" as defined by Wright 2000), that is, if there is a considerable amount of involvement of members of the public. But it recognizes that there are limits to this, and some difficulties of principle, as well as practical ones of putting it into effect. This section outlines some characteristics of community-based restorative justice, and describes a small survey to give a preliminary indication of the extent of community involvement in Europe. Then, after a note on the limitations of the survey, we will present a brief summary of the findings. (excerpt)