Modelling

Bridging the gap between these two transformations is a transformation of structures. It is the practical means of taking the restorative perspective (or vision) and achieving the ultimate goal: the transformation of lives.

Restorative justice will not become an implemented reality unless and until a structural model can be developed for the restorative paradigm. Van Ness (Van Ness, 2000) posits that four models of restorative justice exist:

1. a unified system in which all cases are handled in a restorative manner
2. a dual track system in which restorative justice stands as a co-existing alternative to criminal justice
   
3. a safeguard model in which most cases are handled in a restorative manner, but certain cases not amenable to restorative interventions are handled by the familiar contemporary processes
   
4. a hybrid model in which contemporary criminal justice handles all processes until guilt is determined, at which point restorative processes determine the sanction

Unified System

Those who subscribe to Christie's hypothesis that the State has "stolen" the conflict from the parties would, commensurate with this view, envision restorative justice replacing criminal justice (Van Ness, 1997 at 14). To return the conflict to its rightful "owners" requires a wholly different approach to administering justice processes. Anything short of allowing the victim and offender to determine the outcome themselves of this conflict would reserve for the State a portion of the conflict that it does not rightfully possess. Therefore, under this view, restorative justice processes should incrementally replace all of traditional processes.

This replacement might come in at least two ways. First, a restorative system might prove itself capable of handling all cases and be given sole responsibility for all criminal matters.  Second, the contemporary justice system is transformed through new values and processes into a restorative system.

Dual Track System
 
In a dual-track model, restorative and traditional processes would co-exist, with the parties determining the course of a particular case. If agreement to enter a restorative process could not be reached (by consensus of all interested parties) then the traditional court system would remain available. The restorative response could be primary with formal institutions in a supportive role.

The Japanese model of criminal justice essentially consists of a dual-track system (Haley, 1996 at 351). Its formal system is similar to most industrial democracies, with substantive and procedural rules governing the course of a criminal case. Informally, however, Japanese justice officials (police, prosecutors, defence attorneys and judges) encourage actions that affirm restorative values, giving the victim and the offender the opportunity, in a real sense, to determine whether the case goes to a formal process, or alternatively, an informal process.

Officials encourage the offender to acknowledge guilt and express remorse (evidenced by payment of restitution). Victims are encouraged to pardon and accept restitution. Communities are encouraged to reintegrate remorseful offenders. In addition to considering the nature and gravity of the offence when deciding what formal action to take with a particular offender (like most democracies with advanced judicial systems), the Japanese model also integrates the circumstances cited above when making this decision: offender's acknowledgment of guilt, sincere expression of remorse, payment of restitution, and pardon by the victim.

The Japanese justice system is primarily concerned with corrections as a means of crime control. Therefore, it is not reluctant to adapt the formal penal system to serve the correctional goal. Informal processes, then, if they serve this correctional goal, are utilized. Since it is concerned primarily with corrections as a means of achieving crime control, it is restrained in its use of incarceration when the correctional process has begun. This means that it allows these factors to influence the decision to prosecute, suspend sentence, or otherwise re-direct an offender back into the community. The Japanese system at times will suspend sentence in lieu of an agreement worked out by the victim and offender. Sometimes prosecution will be avoided altogether when the offender accepts responsibility. If evidence of acknowledgment of wrongdoing, restitution, agreement and/or pardon exists, demonstrating that the correctional process has begun, justice officials will give priority to an informal disposition of the case.

The Japanese model is a dual-track system, utilizing formal and informal processes. The victim and offender have the opportunity to take actions that would allow them to decide outcome of the conflict. The restorative values of encounter, participation, restitution, acceptance of responsibility, and opportunity for reconciliation are strongly affirmed. Formal trials remain available.

Evidence of the Japanese model's success in reducing crime over the last four decades suggest that the restorative principles undergirding this dual-track formal/informal scheme have profoundly positive results.

The most apparent advantage of a dual-track system is the provision of traditional and restorative processes. Each have their unique advantages. Appropriate cases would be directed to each of the systems. Within this model, the victim and the offender would still primarily determine the course of the case, whether it goes to formal or informal processes (subject to an overriding public safety concern).

Moreover, this model affirms restorative values, without subordinating them to traditional retributive impulses. Each system would stand on equal footing, with an equivalent legitimacy.

Furthermore, the dual-track system alleviates the fears and impediments discussed in the section on the replacement model. Traditional processes remain available, and existing structures remain in place. Therefore, those who profit from the traditional system will not be as vehemently opposed to a dual-track system. Politicians will not be as reluctant to publicly support such a system.

Finally, a dual-track system would involve reciprocal oversight of each system, with the two linked for certain purposes. Each system could check the abuses of the other (Van Ness, 1997).

Safeguard System

In the safeguard model, restorative justice programmes would be the primarily means of dealing with criminal matters. This means that there would be a large shift from the traditional criminal justice system and a large reduction in its caseload.

However, certain cases would be retained by contemporary criminal justice systems.  Those are the cases deemed unsuitable for a restorative process or programme.  Examples might be situations in which there is a real question about the guilt of the accused, or situations in which significant coercion or restraints are seen as necessary in order to protect the public.  Contemporary criminal justice, with its procedural safeguards, is more accustomed to handling those kinds of cases

Hybrid System

In the hybrid system both restorative and contemporary criminal justice responses are viewed as normative parts of the justice system.  Each does what it is most used to doing (which may mean that restorative processes begin once guilt is determined).

Martin Wright frames the issue of system models somewhat differently.  He suggests that there is an "authoritarian" restorative justice, characterized by decision-making by courts and other criminal justice authorities.  Restorative features are added to this justice system, and probably feature restitution, with mediation seen (if at all) as a way to arrive at restitution.  "Restorative" sanctions such as restitution and community service are likely to be viewed as punitive, and it is not likely to be important whether the offender offers reparation or provides it because of an order to do so.  This authoritarian restorative justice is essentially the hybrid model presented here.

The alternative is "democratic" restorative justice, which is located in the community as much as possible, not in the justice system.  The victim, offender and community members make the decisions.  Persuasion and empowerment are used as alternatives to coercion (although coercion may be needed as a last resort.  Mediation will be administered by non-profit organizations rather than government agencies. The focus will be on benefiting both the victim and the offender, not one party alone.  Democratic restorative justice would lend itself to any of the other three models described.  (Wright, 2000).

Implementing a Model

Wright says that the best approach to implementing a system ultimately based on restorative principles is to "begin with voluntary, non-profit organizations, working alongside the official system but maintaining independence from it as far as possible" (Wright, 1992 at 535). Referrals would be taken at any stage during a formal process. Serious cases would warrant a referral back to the traditional court system to assess the need for custody or restriction of liberties to protect the public. All sanctions would be reparative in intent.

Short of achieving a wholly restorative system, several steps might be taken to reduce the tension created between a restorative system and the traditional adversarial system. Legislatures could encourage courts to adopt restorative philosophies initially in the juvenile arena with movement towards adoption in adult courts as restorative programmes prove their abilities and successes at handling more difficult and serious crimes.

In Wright's model, the court system would be needed only in specific enumerated cases in which voluntary reparation was insufficient, such as:

1. offender refuses to make reparation voluntarily;
2. victim accepted reparation that failed to sufficiently address public concern;
3. offender denies committing the offence; or
   
4. incarceration or restrictions on liberty of offender were necessary to protect the public.

This document prepared by Christopher Bright. Copyright 1997 by Prison Fellowship International.