You are here: Home → Resources → Theory Resources → Limitations to Restorative Justice

Limitations to Restorative Justice

Up one level

Cossins, Annie. Restorative Justice and Child Sex Offences: The Theory and the Practice.

Restorative justice advocates have made a number of claims about the effectiveness of restorative justice in relation to sexual assault crimes, such as its ability to defuse power relations between the parties and heal the harm. This article examines whether or not restorative justice is one of the ways forward in the difficult area of prosecuting child sex offences by re-analysing some of the data reported in Daly (2006) and comparing restorative justice with other reforms to the sexual assault trial. It concludes that there is insufficient evidence to support the view that there are inherent benefits in the restorative justice process that provide victims of sexual assault with a superior form of justice. (author's abstract)

Coster, Sarah. The Pitcairn Island criminal trials - How has restorative justice featured?

The amassed circumstances surrounding the trials involving 13 men charged with sexual offending on Pitcairn Island (a British Overseas Territory in the Pacific with a population of 47) make them some of the most extraordinary trials in criminal history. The situation has already raised many fascinating questions of law and justice. Quite apart from the issues within the individual trials themselves, this case has involved pre-trial applications questioning the status of Pitcairn law and challenging the jurisdiction of the Pitcairn courts. Consideration of whether to run the trials on the small, isolated island also raised fundamental issues of justice, while the practical outworking of doing so has highlighted tensions existing within the community. Restorative Justice has featured in the mix of issues to date, having been variously mooted by some Pitcairn Islanders, Restorative Justice advocates, and other observers, as a potential means of dealing with the situation. Some have proposed restorative justice as a substitute for the trials, others as an aspect of sentencing, and others as an adjunct to the existing criminal process. This presentation will note the various forms of restorative justice that have been suggested in relation to the trial, and will identify some issues to be considered surrounding those proposals from a theoretical perspective. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

Daly, Erin. Truth Skepticism: An Inquiry into the Value of Truth in Times of Transition.

Truth commissions have become so fashionable in times of transition that one can readily recognize what might be called a ‘truth cascade.’ The commissions, and the reports they produce, are reputed to promote many of the goals at the heart of the transitional justice project: helping victims to heal, promoting accountability, drawing a bright line between the past and the present, promoting reconciliation and so forth. And yet, a closer look at the truth-seeking enterprise suggests that it may not be able to deliver on these promises. This article explores both the intrinsic and instrumental reasons why truth commissions may not be effective in promoting the goals attributed to them. The article does not argue that transitional governments should not pursue the truth, but it does urge governments to use caution and careful planning when they do so. (author's abstract)

Daly, Kathleen . Setting the Record Straight and A Call for Radical Change: A Reply to Annie Cossins on ‘Restorative Justice and Child Sex Offences’.

This paper responds to Annie Cossins' article in the British Journal of Criminology 48(3), which draws on my research to argue that the case for using restorative justice in response to sexual assault is not well founded. She proposes instead that further legal reform should be pursued. I discuss the reasons for a paucity of evidence, present findings from my research, and correct and challenge several misrepresentations and assumptions in her article. I argue that the way forward should not be limited to legal reform, but should include restorative justice, and more broadly, alternative justice practices.(author's abstract)

Daly, Kathleen and Stubbs, Julie. Feminist engagement with restorative justice

Feminist engagement with the idea of restorative justice (RJ) takes several forms, and this article maps five areas of theory, research, and politics. They are: theories of justice; the role of retribution in criminal justice; studies of gender in RJ processes; the appropriateness of RJ for partner, sexual, or family violence; and the politics of race and gender in making justice claims. There is overlap among the five, and some analysts or arguments may work across them. However, each has a particular set of concerns and a different kind of engagement with the idea of RJ. (excerpt)

Daly, Kathleen. The limits of Restorative Justice

This chapter addresses a selected set of limits of RJ, those concerning its scope and its practices. My discussion is selective and limited. I do not consider the discursive limits of liberal legality as these are viewed through a postmodern lens, not do I consider related problems when nation states or communities cannot imagine particular offences or understand ‘ultra-Others’. My focus instead is on the limits of current RJ practices, when applied to youth justice cases in common law jurisdictions. There are other contexts where RJ can be applied, including adult criminal cases; non-criminal contexts (school disputes and conflicts; workplace disputes and conflicts; and child welfare); and responding to broader political conflict as a form of transitional justice practice, among other potential sites. I focus on RJ in youth justice cases because it currently has a large body of empirical evidence. However, as RJ is increasingly being applied in adult cases and in different contexts (pre- or post-sentence advice, for example, as is now the case in England and New Zealand) we might expect to see different kings of limits emerging. (excerpt)

Eze, Emmanuel Chukwudi. Transition and the Reasons of Memory

In this essay, Emmanuel Chukwudi Eze delves into questions pertaining to forgiveness in the aftermath of human rights abuses under apartheid in South Africa. For example, what motivates victims of abuses to forgive? What does it mean for victims to forgive the past? What kind of morality should govern questions about processes connected with forgiveness such as offering or not offering forgiveness, accepting or not accepting forgiveness, and so on? In a similar vein, what are the ethics of forgiveness in relation to the necessary requirements of justice and the memory of past acts of state-sanctioned crimes? Eze reflects on these and other questions to shed light on reasons for forgiveness and the ethical and political uses of public memories of gross, systemic, state-sanctioned human rights violations.

Falck, Sturla. Restorative justice - a giant leap or just another tool for the criminal justice system?

I will start by taking a look back at the origins of some of the main ideas of restorative justice, both in Norway and elsewhere. After that I will take a look at developments from an outsider's perspective. Since I am from Norway my main examples will be drawn from that country, although I draw on international trends to some extent. Ultimately the outcome could point in two directions, either towards restorative justice as a new tool for the criminal justice sector, or towards restorative justice as offering the possibility of gradual transition towards a new understanding of conflict resolution. (excerpt)

Fattah, Ezzat A. Is Punishment the Appropriate Response to Gross Human Rights Violations? Is a Non-punitive Justice System Feasible?

Proponents of Restorative Justice in the West often forget that Africa is the cradle of R.J. Social evolution in pre-industrial African societies and saw the move from private vengeance to group retaliation which, in turn, paved the way to a system of composition, the earliest form of R.J. The current punitive system was imposed by the colonial powers and surprisingly remains in place long after independence was achieved. It is baffling that despite the manifest advantages and benefits of R.J. over a punitive, retributive system, whose sole aim is to inflict pain and suffering on the wrong-doer, there is still reluctance to do away with the ideas of expiation and penitence in favour of reconciliation and compensation. The strong support for victims of crime, coupled with the fact that victims are the main losers in a punitive system of justice, have not succeeded in convincing politicians, lawmakers or the general public to abandon this medieval practice. And yet, the destructive and detrimental effects of punishment are too evident to ignore. There are many reasons why punishment can never be an appropriate response to harmful and injurious acts. The unanimous view is that for punishment to be morally acceptable in a democratic just society it has to be proportionate to the injury or the harm done. This noble objective of fairness is utterly impossible to achieve in practice. This is why Transitional Justice is becoming the preferred mode of dealing with atrocities committed by previous regimes in countries in transition to democracy. All this suggests that the time is right for a paradigm shift in society’s response to crime. Many years ago I argued that this can be achieved by moving from a guilt orientation to a consequence orientation thus removing the artificial boundaries arbitrarily erected between civil and criminal law. This goal will hopefully be attained by the implementation and full institutionalisation of Restorative Justice. (author's abstract)

Fromme, Joan. Restorative Justice and Human Rights.

This study will explore how human rights cases can be redressed through the use of restorative justice and will identify the commonalities, differences and obstacles in the use of restorative justice as a redress mechanism. The BC Human Rights Coalition benefits by being able to utilize the research results to consider alternatives to advance the cause of human rights resolution, as well as enhance the organizational effectiveness in terms of their goals concerning advocacy, education and law reform. The research project explores the concept of utilizing restorative justice processes in human rights cases, the circumstances in which its use would be inappropriate, and considers how restorative justice processes might be used in systemic discrimination cases. Currently, restorative justice is not used in human rights cases. The recommendations outline next steps in terms of future research required in this area. (author's abstract)

Garner, Sharon G. and Hafemeister, Thomas L.. Restorative Justice, Therapeutic Jurisprudence, and Mental Health Courts: Finding a Better Means to Respond to Offenders with a Mental Disorder.

An unresolved question is whether restorative justice programs are successful for only a small, select number of offenders or whether they are effective for a wide range of offenders. This article addresses one group of criminal defendants, namely, individuals with a mental disorder, for whom a restorative justice approach at first glance might seem inappropriate. However, this article concludes that this approach should encompass such offenders when their disorder is relatively stable and when they possess sufficient interpersonal skills to engage in a meaningful dialogue with their victims. The restorative justice approach promotes the psychological well-being of such offenders and their victims without undermining the social and legal goals of deterrence and retribution. In addition, this article discusses how restorative justice complements the principles of therapeutic jurisprudence and mental health courts, two related innovative approaches that recognize the need for distinct treatment for this population of offenders. (excerpt)

Gibbs, Meredith. Restoration or reconciliation: Providing contemporary reparation for historical injustices against Maori.

This paper examines some of the complexities of providing contemporary reparation for Maori claims of historical injustice arising from breaches of the Treaty of Waitangi with particular reference to grievances involving land. I explore some of the theoretical and practical difficulties of applying a restorative approach to reparation in New Zealand's Treaty settlement process and argue that a restorative approach is possible in theory but extremely problematic in practice. I question whether New Zealand's attempt to achieve justice in the Treaty settlement process is better described as reparation as reconciliation where the cultural survival of the Maori claimant group is given greater weight than the provision of full reparation for past wrongs. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

Goel, Rashmi. Sita's Trousseau: Restorative Justice, Domestic Violence, and South Asian Culture.

Domestic violence affects women across all national boundaries. Only recently has restorative justice been proposed as a solution to domestic violence issues. For these women, restorative justice which focuses on restoring the family preserves the only support structure available. Paying attention to the cultural specifics that govern these women's lives and how they affect the choices they make, this article focuses specifically on South Asian women who are battered and the unique predicament they face when participating in restorative justice resolutions, as well as immigrant South Asian women who a particularly prone to flawed solutions to battering for many reasons. The article is presented in five sections. The first briefly identifies the goals, values, and methods of the restorative justice model. Second, the article reports on the current state of domestic violence in South Asian communities. It explores the story of Sita and how this model and other cultural practice serve to disempower South Asian women. Fourth, it examines how even modern Indian politics keep women confined to the traditional narrative. Lastly, it is demonstrated why restorative justice should not be applied to domestic violence cases in immigrant South Asian families. If the goal is safety, it is believed that restorative justice solutions operate more to exploit the Indian woman's subservient position than they do to liberate her. The solution of compromising, fore bearing, and suffering silently but maintaining her family seems to be one of greater dignity and certainly more in keeping with her cultural values. Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.org.

Graybill, Lyn. Pursuit of Truth and Reconciliation in South Africa

How do governments deal with human rights violations committed by former regimes? South Africa's solution has been the Truth and Reconciliation Commission (TRC), a carrot-and-stick approach that offers amnesty to those who come forward to disclose their deeds and the threat of criminal prosecution to those who do not. On the heels of an exceptional transition of power in which an entrenched ruling group relinquished control without imminent military threat, South Africa embarked on an equally unprecedented process of national reconciliation. Because the African National Congress (ANC) did not win a military battle but instead came to power through a negotiated settlement, compromises had to be made in order to win the National Party's support, to ensure democratic elections, and, above all, to promote peace. In the words of Kader Asmal, one of the key architects of the TRC who argued for a process that would not insist on criminal prosecutions, "We sacrifice justice for truth so as to consolidate democracy, to close the chapter of the past and to avoid confrontation." To acknowledge that the politics of compromise may be at odds with a strict notion of justicexe2x80x94what Reinhold Niebuhr called "perfect justice" is not to deny an ethical basis for the TRC. In assessing the TRC's success, one must ask: If not justice, what does the TRC offer? What follows is an assessment of the political, procedural, and ethical criticisms of the TRC. (excerpt)

Gromet, Dena M. and Darley, John M. Restoration and Retribution: How Including Retributive Components Affects the Acceptability of Restorative Justice Procedures

This study examined whether adding retributive components to restorative justice procedures would impact citizen’s perceptions of the acceptability of restorative justice procedures for handling crimes of differing severity. The findings from study 1 indicated that participants were willing to assign pure restorative procedures for less serious crimes but they overwhelmingly included a retributive component for more serious crimes. Study 2 results indicated that participants did not lower prison sentences for offenders whose conferences failed, nor did they punish these offenders with more severe sentences. Participants consistently lowered prison sentences for offenders who successfully completed restorative procedures. The findings suggest that citizens may be willing to embrace restorative practices for less serious crimes but require more retributive options as the seriousness of the crime increases. The first study focused on whether the seriousness of the crime impacted citizen’s perceptions of the role of punitive measures in restorative justice procedures. Participants were 57 undergraduate psychology students who participated for course credit. Participants were educated on the differences between pure restorative practices and punitive procedures and were asked to judge nine court cases in terms of whether the cases should go through pure restorative procedures, a mixed procedure, or the traditional court process. In Study 2, 43 undergraduate psychology students who were participating for course credit were randomly assigned to 1 of 2 conditions: (1) a no-fault conference outcome in which the victim and the offender from a mixed procedure had failed to reach an agreement, and (2) an offender-fault conference outcome in which a mixed procedure conference failed because of a lack of effort on the offender’s part. Participants were directed to answer questions related to the offender, such as likelihood of recidivism, and to offer their opinion of the sentence the offender should receive. Both studies were administered via Internet-linked computers. Data were analyzed using nominal logistic regression models and repeated measures ANOVA. Future research should attempt to replicate these findings with different populations. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).

Gustafson, Dave. Is Restorative Justice Taking Too Few, or Too Many Risks?

The question as to whether restorative justice is taking too few or too many risks is complex and not easily answered. In a sense, remarks David Gustafson, the answer is 'yes' to both-- it is both taking too few and too many risks. Research on restorative justice and practical experience of restorative justice providers indicate many successful processes and outcomes. At that same time, research and practical experience reveal problems and failures as well. In this framework, Gustafson discusses 'risk-taking' in restorative justice in relation to competency of practitioners, types of offenses being handled in restorative justice programs, and the immense needs for restorative responses to crime and those affected by crime.

Henderson, Angela D. and Jackson, Margaret A.. Restorative Justice or Restorative Health: Which Model Best Fits the Needs of Marginalized Girls in Canadian Society?

The studies show that marginalized girls tend to come from homes with emotionally and physically abusive caregivers. This often pressures them to leave home to live on the streets, surviving through prostitution and petty crime, without access to physical and mental health services. Attempting to cope on the street often brings contact with the justice system, which further alienates them from a normative socioeconomic lifestyle. In the justice system, however, they do often receive health services not available to them in the community. Based on these findings regarding the needs of marginalized girls, this article recommends a prevention strategy for these girls that the authors call a "restorative health" (RH) model. Under this model, publicly funded health-oriented services are offered to these girls without any connection to the justice system. The popular restorative justice model comes into play only after a youth has been drawn into contact with the justice system. The RH model, on the other hand, focuses on meeting marginalized girls' mental and physical health needs without reference to any accountability interventions related to delinquent behavior. This model prevents further marginalization under the stigmatizing influence of the justice system while meeting health needs that may place a girl at risk for deviant coping behaviors. One of the studies reviewed in this article involved an examination of the lives of immigrant and refugee girls in the Canadian Province of British Columbia. The second study involved interviews with 28 girls living in extreme poverty as sex trade workers or under conditions of sexual exploitation in rural areas of British Columbia. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov.

Julich, Shirley and Kerwin, Ann. Messing With their Minds: Stockholm Syndrome, Childhood, Sexual Abuse and Frontier Issues for Restorative Justice

Recent decades have brought needed awareness of the alarming prevalence and enduring harm of childhood sexual abuse. Professionals who work with children---teachers, law enforcement officers, clinicians, social workers, among others---are now alert to manifestations of suspected abuse and procedures for responding and reporting. For adult survivors of childhood sexual abuse, restorative justice would appear to offer both an outlet for healing and a welcome alternative to the traditional justice system. And yet---as the mathematician Enrico Bombieri observed: "When things get too complicated, it sometimes makes sense to stop and wonder: Have I asked the right question?" Sadly, the experience of adult survivors of childhood sexual abuse within the context of restorative justice is complicated indeed. It's time to question, to wonder, and to explore unstated assumptions. In this presentation, Drs. Shirley Julich and Ann Kerwin explore a surprising, often frustrating paradox: the reluctance of adult survivors, now removed from perpetrators and fully aware of the horrific psychic disfigurement they continue to experience, who, nevertheless, hesitate to hold their abuser[s] to account in an apparently sheltered public way. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

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.

Lind, E. Allan.. Social Conflict and Social Justice: Lessons from the Social Psychology of Justice Judgments.

Professor Lind explores some key psychological processes associated with social conflict. Specifically, he examines the social psychology of justice and the implications of justice judgments for social conflict and its reduction. He especially notes the sense of receiving a "fair process" in relation to satisfaction with court mediation and justice judgments.