Conceptual Issues and Justifications

These articles consider a variety of theoretical or conceptual (as opposed to practical) issues posed by restorative justice practice.

. Confidentiality and Victim-Offender Mediation

This book reports on a research project which studied the appropriate level of confidentiality that should apply to mediation-delivered information, regarding the out-of-court setting and the judicial context. Various exceptions to the high level of confidentiality that should apply to the issues discussed in mediation are developed. Additionally, it is explained how the thus advocated scope of the principle of confidentiality should be implemented in practice. (Excerpt)

. Debating restorative justice.

In this first volume of the series Carolyn Hoyle argues that communities and the state should be more restorative in responding to harms caused by crimes, antisocial behaviour and other incivilities. She supports the exclusive use of restorative jsutice for many non-serious offences, and favours approaches that, by integrating restorative and retributive philosophies, take restorative practices into the 'deep end' of criminal justice. While acknowledging that restorative justice appears to have much to offer in terms of criminal justice reform, Chris Cunneen offers a different account, contending that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He goes on to argue that after several decades of experimentation, restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. This lively and valuable debate will be of great interest to everyone interested in the criminal justice system. (publisher's description).

. Friendship at the Margins: Discovering Mutuality in Service and Mission

Chris Heuertz, international director of Word Made Flesh, and theologian and ethicist Christine Pohl show how friendship is a Christian vocation that can bring reconciliation and healing to our broken world. They contend that unlikely friendships are at the center of an alternative paradigm for mission, where people are not objectified as potential converts but encountered in relationships of mutuality and reciprocity. (Excerpt)

. Judging Victims: Why We Stigmatize Survivors, and How They Reclaim Respect

Dunn explores the shifting perceptions over time of victims as blameworthy, blameless, pathetic, or heroic figures. She also links those images to their real-world consequences, demonstrating that they dominate the ways in which people think about intimate violence and individual responsibility. Her analysis cuts to the core of fundamental issues at the center of debates about crime and deviance, victimization, and social problems. (Excerpt)

. Political ideology and reactions to crime victims: Preferences for restorative and punitive responses.

We investigate the hypothesis that there are ideological differences in views about how crime victims can be restored. Across two studies, we found that liberal responses to victimization (Study 1) and crime (Study 2) are more reflective of a reparative mindset that directly addresses the needs and concerns of victims, whereas conservative responses are at least equally reflective of a punitive mindset that addresses victim harm through offender punishment. Furthermore, the salience of victim concerns, and whether people could carefully evaluate their judgments, affected the expression of these differing justice mindsets on people's satisfaction with the use of restoration and punishment in response to serious wrongdoing. When participants' cognitive resources were depleted, liberal satisfaction remained constant, whereas conservative satisfaction with the use of restoration decreased when victim concerns were salient. These results indicate that there are ideological differences in the adoption of both punitive and reparative justice mindsets, which can facilitate differing responses to victim concerns. (Author's abstract)

. Repairing the Rupture: Restorative Justice and the Rehabilitation of Offenders.

Restorative justice is a social justice movement that aims to deal with consequences of crime through repairing and restoring relationships of three key stakeholders: victims, offenders, and communities. An analysis of the relationship between restorative justice theory and offender rehabilitation principles revealed tensions between the Risk-Need Responsivity Model (RNR) and the Good lives Model (GLM), the two normative frameworks. Findings exposed a lack of appreciation that correctional treatment programs have a legitimate role alongside restorative practices. Restorative justice and rehabilitation models are distinct, although overlapping, normative frameworks and have different domains of application in the criminal justice system; it is a mistake to attempt to blend them in any robust sense. The major difference is that the core values underpinning restorative justice practices are ethical in nature while rehabilitation approaches are fundamentally based on prudential values. The key concept to restoration is of restoring relationships between the stakeholders affected by crime and restoration of offenders’ functioning within the community by way of capabilities acquisition. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).

. Retributive and restorative justice: Importance of crime severity and shared identity in people’s justice responses.

Retributive and restorative justice present two different responses to wrongdoing: one that focuses on addressing the moral wrong through punitive sanctions (retribution) and one that focuses on addressing the harm that has been caused through reparative sanctions (restoration). Psychological investigations of what factors influence which justice outcome that people desire (retributive, restorative, or both) have focused on two constructs: crime severity and shared identity. The crime severity approach contends that people can have multiple justice goals, and which justice goals people want to fulfil is dependent on the salient features of the situation (such as offence seriousness). The shared identity approach argues that people’s desire for restoration or retribution is dependent on the shared identity and perceptions of value consensus between offender and victim in the judgement context. The findings related to both of these factors are reviewed, and possibilities for future research integrating these two approaches are discussed. (author's abstract)

. Using Criminal Punishment to Serve Both Victim and Social Needs.

In this article we propose changing the manner in which control rights over criminal sanctions are distributed. This modest change has the potential to increase victim well-being without interfering with social needs. Specifically, victims should have the right to determine whether an offender will serve the last ten to twenty percent of his prison term. The control right can do more than help restore a sense of victim empowerment: it will likely encourage voluntary victim–offender mediation (VOM), which has been demonstrated to assist the emotional healing process for victims while perhaps decreasing recidivism rates. Section II of this article briefly describes both recent victims’ rights reform efforts and the recent rise in the use of VOM. Section III describes the proposal involving the distribution of control rights and possible objections to it. (excerpt)

A needle for the restorative justice compass

from the entry by Howard Zehr on Restorative Justice Blog: Injustice occurs when people are turned into objects through relationships. Justice occurs when people are honored through relationships. So for Vaandering, what is needed in restorative justice is a concerned effort to remind us all of the following: Justice is a call to recognize that all humans are worthy and to be honored. Injustice occurs when people are objectified. The term restorative justice becomes meaningful when it refers to restoring people to being honored as human.

A relational vision of justice

from Jennifer Llewellyn's article for Restorative Justice Week 2011: As a relational theory of justice, RJ is rooted in a relational understanding of human beings and the world. It starts from the fundamental assumption that human beings are inherently relational. This is more than merely a description about the way in which we live or a claim about the benefits that relationships bring. Human beings do indeed live in relationships with one another, but, a relational theory claims that we could not do otherwise. We are, on this account, formed in and through relationship with others. Relationship is central to who we are and who we become. This is not to say that we are just the sum of our relationships or wholly determined by them. We still make choices for ourselves and are responsible for those choices. But a relational approach reveals the extent to which our choices are made possible by and realized with the help of others. Our choices also affect others.

An apology is not good enough and neither is a conviction

from the independent review of the 2011 Vancouver Stanley Cup Playoffs riot: Accountability is most powerful when an individual fully understands the effects of their actions on other people and not just the impersonal state. Some did as soon as they woke up the next day, bewildered and remorseful. Bold acts that drew cheers on the 15th were inexplicable and humiliating on the 16th. Even many of those who felt no remorse felt the lash of global village justice in all its forms. Remorse, no matter how sincere, is not enough. We had a deal: we respected them and they respected us. They broke that deal on June 15 (albeit impulsively in many cases) and a price must be paid. There are strong and widespread views that the criminal justice system is not up to the task because it is too slow and too weak. But another, more apt reason is that it is too impersonal. A guilty plea and imposition of a fine teaches nothing of the harm that’s been done.

Archibald, Bruce P. Coordinating Canada's Restorative and Inclusionary Models of Criminal Justice: The Legal Profession and the Exercise of Discretion under a Reflexive Rule of Law

Canadian criminal justice has moved to a hybrid system involving a formal but inclusionary criminal trial as the predominant model with an informal restorative justice model as an increasingly significant alternative. This system invokes traditional punitive, rehabilitative and corrective elements yet deploys them in new institutionalized contexts. The formal inclusionary model integrates victims' concerns at all levels from policing and prosecution through the trial to sentencing and parole, while maintaining due process protections for the accused. The informal restorative model responds to criminal harms by bringing together victims, offenders, their respective families and community representatives in a deliberative process which can result in accountability, reparation and community based solutions to go to the root of crime causations... These developments in Canadian criminal justice reflect the postmodern conditions of our regulatory or supervisory state. Such participatory processes, rejecting a purely hierarchical approach, are characteristic of what has been termed a reflexive rule of law in deliberative constitutional democracies, and are parallel to legal evolution in other domains. If properly co-ordinated, these models have great potential for enhancing criminal justice in current Canadian society which exhibits increasing structural complexity, social diversity and public alienation from legal institutions. However, members of the legal profession, including bench, bar and chair must accept their responsibilities and new obligations in order to endure the new hybrid system functions effectively. (excerpt)

Brookman, Fiona and Bennett, Trevor and Pierpoint, Harriet and Maguire, Mike. Handbook on Crime

The Handbook on Crime provides analysis and explanation of the nature, extent, patterns and causes of over 40 different forms of crime, in each case drawing attention to key contemporary debates and social and criminal justice responses. It also challenges many popular and official conceptions of crime. (Excerpt)

Bucqueroux, Bonnie. Restorative Community Justice: A Comprehensive Approach to Reducing Crime and Violence in Our Culture

While the United States has made dramatic strides in reducing the crime rate in recent years, the gains have come at the price of the world's highest rate of incarceration and crime rates are still too high and communities continue to suffer. This paper on Building a Restorative Community Justice model offers a vision of an effective alternative to the fragmented criminal and juvenile justice systems of today, as well as a three-phase plan to make this vision a reality: 1) Develop a Restorative Community Justice model - Synthesize the essence of the major criminal and juvenile justice reforms into a comprehensive, system-wide Restorative Community Justice model. 2) Promote learning organizations - Transform police, prosecutors, courts and corrections into Learning organizations that can apply systems thinking to changing times and new challenges. 3) Strengthen Communities - Create capacity within communities so that they become full partners in the process of merging formal and informal social control into a unified, community-based approach. (excerpt)

Burke-White, William W. Regionalization of International Criminal Law Enforcement: A Preliminary Exploration

According to William Burke-White, the enforcement of international criminal law has largely occurred at the supranational level since the 1945 Nuremberg International Military Tribunal. More recently, this enforcement has migrated to the domestic level (compare, e.g., the Special Panels in East Timor or the Special Court for Sierra Leone). All of this has led to the emergence of a system of international criminal law enforcement operating at a variety of levels. Burke-White asserts that a core level of this system -the regional level- remains unexplored and underdeveloped. Hence, in this paper he seeks to fill this void by providing a preliminary consideration of fundamental questions as to whether such regionalization would be useful and achievable.

Circling self-interest and democracy

reviewed by Dan Van Ness Lode Walgrave begins his exceptional 2008 book Restorative Justice, Self-interest and Responsible Citizenship like many writers on restorative justice. He reviews the ancient and recent history of restorative approaches, proposes and explains a definition of restorative justice, and outlines various restorative schemes. He then contrasts restorative approaches from contemporary criminal practice and identifies ways in which the former resolves practical and ethical problems of the latter. The person who crosses this familiar territory with Lode is well rewarded because he writes with analytical precision, a scholar’s restraint, and the passion of someone with conviction. He has much to say that is worth hearing. He once again explains clearly why he favours a maximalist definition of restorative justice, one that is not limited to deliberative schemes but which applies only to harm caused by crime. He carefully and thoroughly builds his case against punishment and against restorative justice being considered an alternative punishment rather than an alternative to punishment.

Comparing coercive and non-coercive interventions

from James McGuire's article in Transition to Adulthood: There is a widespread perception that behaviour which society finds problematic can be changed by coercive methods: that those who are perceived as creating difficulties for others, even if they are partly understood to be experiencing difficulties themselves, will only change if they are constrained, controlled and compelled to do so.

Connolly, Marie . Family group conferences in child welfare: the fit with restorative justice.

In recent decades, restorative practices have become an important aspect of service delivery in both youth justice and in the care and protection of children. Restorative justice, as an overarching term, has also been used to describe restorative practices, particularly with respect to the use of family group conferencing, across these two practice domains. There are, however, significant differences in these two areas of practice that create theoretical and philosophical tensions when attempting to incorporate them under a restorative justice banner. This article explores these tensions and concludes that while care and protection practice has restorative elements, significant differences set it apart from restorative justice. In arguing for greater clarity between the two at a theoretical and philosophical level, the paper encourages us to explore important opportunities to enrich each practice domain with the values and principles of both. (author's abstract)

Debating restorative justice

Chris Cunneen and Carolyn Hoyle. Debating restorative justice. Oxford and Portland, OR: Hart Publishing. 2010. 195 pp. £15.00 (ISBN 13: 9781849460224) reviewed by Martin Wright This is the first of a new series of law books, each containing two essays of about 30,000 words on different sides of a current debate. Carolyn Hoyle suggests that there is more talk than action, and some of the action called restorative is actually punitive, such as the community service performed in conspicuous clothes. In her discussion of communitarianism she regards community participation as the presence of supporters and others at a restorative conference, but does not refer to the involvement of independent voluntary-sector mediation services (and admittedly they are thin on the ground). She considers that communitarians go too far in rejecting the state. In her view restorative justice and criminal justice are complementary: courts are necessary if the accused doesn’t admit involvement. This is true; Hoyle does not exclude the use of prison for retribution, but surely in a fully restorative system the courts would impose reparative, not punitive, sanctions. She does not explore whether these should try to be proportionate to the offender’s culpability or the harm suffered by the victim.

Dignan, James and Cavadino, Michael. Towards a framework for conceptualising and evaluating models of criminal justice from a victim's perspective

Recent empirical findings and theoretical writings are reviewed in order to evaluate 3 distinct models of restorative justice within a typology of victim-based measures proposed or adopted in the U.K.: the civilian, victim-offender reparation, and communitarian approaches. The communitarian model is the most coherent, credible and constructive challenger to the hitherto predominant retributive model. This model avoids many of the criticisms to which earlier alternative models were vulnerable.