Conceptual Issues and Justifications

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

McCold, Paul. What is the Role of Community in Restorative Justice Theory and Practice?

One of the greatest challenges facing restorative justice, claims Paul McCold, is to define the role of 'community' in theory and practice. The idea of community can evoke many possible meanings and referents. It can signify a local neighborhood, a set of nations, a group of people with some common interest or occupation, and more. In restorative justice usage, the word 'community' can point to a 'macro-community,' such as an ethnic group or society in general. Or, it can indicate a 'micro-community,' such as a victim's or offender's family members, friends, and immediate neighbors. The macro-community and micro-community are different populations with different needs. Indeed, McCold says, these two perceptions of community present restorative justice with an apparent conflict of interests. Can restorative justice meet the needs of both? McCold answers this question in the affirmative by presenting a needs-based theory of restorative justice that focuses on means rather than ends or outcomes with respect to restorative processes.

McEvoy, Kieran and Ellison, Graham. Criminological Discourses in Northern Ireland: Conflict and Conflict Resolution

According to Kieran McEvoy and Graham Ellison, despite the centrality of the criminal justice system to political conflict, criminological literature in general has had very little to say about such conflict. Stepping boldly into this lacuna, McEvoy and Ellison assess the significance of criminological discourses both during the Northern Ireland conflict and in the subsequent era of peace processes. They assert that some of the central tenets of criminological thought provide useful tools for analyzing and understanding the conflict and the conflict resolution processes in Northern Ireland. In particular, they employ criminology’s emphasis on the role of the state as a key constitutive actor in the study of crime as a lens for studying a conflict where the role and responsibilities of the state are politically and ideologically charged issues. They then assess the role of the criminal justice system during the conflict and criminological praxis during the processes of conflict resolution in Northern Ireland.

McEvoy, Kieran and Newburn, Tim. Criminology, Conflict Resolution and Restorative Justice

This book consists of a collection of essays exploring, from different angles, the intersection of criminology, conflict resolution, and restorative justice. The genesis of the collection stemmed from the editors’ perception that criminology has failed to engage in a substantive way with the processes of conflict resolution. Hence, the editors have gathered essays written by a number of people – essays that seek to link criminology with conflict resolution theory and practice. Several essays therefore deal with criminology and conflict resolution at the macro-level; namely, with respect to issues at national and international levels (e.g., transition in South African, conflict in Northern Ireland, and human rights in Africa). Other essays explore criminology and conflict resolution at the micro-level as well; namely, in criminal justice systems within countries as those systems function to address conflict in communities, in villages, and between individuals. Thus, this book brings together not only criminology and conflict resolution, but also restorative justice as an approach to dealing with conflicts and harms between people – with all three of these fields or perspectives being applied at both macro- and micro-levels of conflict and wrongdoing. The list of contributors includes experts in law, criminology, and restorative justice from the United Kingdom and the United States.

McGuire, James. Comparing coercive and non-coercive interventions.

What follows is divided into four sections. The first section briefly summarises basic evidence concerning the circumstances of youth justice in England and Wales, drawing on relevant comparative data in as digestible a form as possible. The second provides a more systematic overview of research findings on the outcomes of different kinds of direct work with young people who have repeatedly broken the law. The third section considers why the kinds of approaches most familiar in the law and order debate – the application of punitive sanctions – do not have the impact they are generally purported to have despite their widespread acceptance. Finally, there will be discussion of how to bridge the present gap between research findings and effective practice, and the implications of doing so for wider policy formulation. (excerpt)

Miller, Jon and Kumar, Rahul. Reparations: Interdisciplinary Inquiries

"Reparations is an idea whose time has come. From civilian victims of war in Iraq and South America to descendents of slaves in the US to citizens of colonized nations in Africa and south Asia to indigenous peoples around the world -- these groups and their advocates are increasingly arguing for the importance of addressing historical injustices that have long been either ignored or denied. This volume aims to contribute to these debates by focusing the attention of a group of highly distinguished international experts on the ways that reparations claims figure in contemporary political and social justice movements. Four broad types of reparations claims are examined, those involving indigenous peoples, the legacy of slavery in the United States, victims of war and conflict, and colonialism. In each instance, scholars and activists argue about the character of the injustice for which reparations are owed, why it is important to take these demands seriously, and what form redress should take. The aim is not consensus but to exhibit better the complexity of the issues involved -- a goal which the interdisciplinary nature of the volume furthers -- as well as the importance of taking seriously both conceptual issues and the actual politics of reparations." (excerpt)

Mirchandani, Rekha and Dzur, Albert W. Punishment and Democracy: The Role of Public Deliberation.

Leading contemporary branches of punishment theory stemming from the traditional schools of consequentialism and retributivism support a role for public deliberation to secure core values communicated through punishment and to encourage greater accountability for punishment practices. Drawing on Habermas’s democratic theory to develop the ideal of public deliberation, this article explores how punishment policies might be subjected to public rational-critical debate. Two contrasting cases exemplify the importance of the deliberative standards stressed by Habermas. Neglecting standards of rational-critical debate results in mere opinion rather than public opinion, the shortcomings of which are illustrated by three strikes legislation where punishment policy emerged from the public but in an unreflective way. In contrast, recent innovations in the imposition of punishment represented by problem-solving courts, like the drug, domestic violence, mental health and community courts developing in jurisdictions around the United States, show how rational-critical public debate can flourish. Habermas’s procedural theory does not advocate particular principles, but shows how civic accountability for punishment reflecting multiple values can gain deeper roots in public culture. (author's abstract)

Morris, Ruth. Restored to What?

Ruth Morris notes that restorative justice recognizes victim needs, gives the crime back to the principle parties, and focuses on healing rather than revenge. However, she argues for transformative justice, rather than restorative justice. In this article she discusses these reasons (1) where you are going does matter, (2) restoring the past, (3) structural injustice: racism and class elitism, (4) involving the wider community, but not the state, and (5) co-optation.

O'Brien, Sandra and Bazemore, Gordon. A New Era in Governmental Reform: Realizing Community

The ‘‘good government’’ models of the 1990s realized a focus that included reinventing, reengineering, rethinking, quality, empowerment, and devolution of the organization. These organizational reform ideologies sought to increase involvement, improve productivity, manage performance, and drive results. One essential key that has been disregarded in these government models is the involvement of community in the decision-making process. This paper points to the importance of involving and empowering citizens in the decision-making process, particularly in regard to community justice based on the notion of ‘‘restorative justice system.’’ Community justice, a modern day reform movement with international proportions, is based on the principles of empowering community, repairing harm caused by a crime or disturbance, and reducing risk to the community. Author's abstract.

O'Connell, Terry and McCold, Paul. Beyond The Journey, Not Much Else Matters: Avoiding the Expert Model with Explicit Restorative Practice

Restorative justice has become more widely known and accepted over the last couple of decades. In order to sustain this momentum, the critical question we must ask is, what constitutes good restorative practice? This paper explores this question by challenging most of the existing restorative practice for its narrow focus and lack of rigor. It will argue that this practice is 'ends focused' and that the idea of embracing practice that works, without clearly understanding why it works, limits that practice's real potential. The authors propose a framework for viewing restorative justice practice that focuses, not on discrete processes or programs, but rather on a broad set of generic restorative propositions underpinned by theories that explain why this practice works. The framework links practice, theories and values in an explicit way, making it accessible to and easily understood by everyone. A case study in a school setting demonstrates how this explicit practice is capable of fostering and building healthy relationships. Abstract courtesy of the Centre for Justice and Peace Development, Massey University, http://justpeace.massey.ac.nz.

O'Hara, Erin Ann and Robbins, Maria Mayo. 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)

Pate, K.. Response: This Woman's Perspective on Justice. Restorative? Retributive? How about Redistributive?

Kim Pate worked for many years with the John Howard Society. As she wrote this, she was working for the Canadian Association of Elizabeth Fry Societies, the members of which provide services and programs on behalf of people, women in particular, who have been or are identified as at risk of being in conflict with the law. In this paper, Pate explores feminism and restorative justice. She asks basic, even radical questions, about what is feminism, what is justice, and what is restorative. In particular, she notes that how we define these terms may have much to do with position in society – that is, with where we are situated with respect to dominant values and structures of society. Depending on whether one is more a part of those dominant values and structures or less a part, the understanding of justice and restoration may differ. Pate raises these questions in the context, then, of identifying ways feminism can and should affect how we understand justice and pursue criminal justice.

Pavlich, George.. What are the Dangers As Well As the Promises of Community Involvement?

As George Pavlich notes, the concept of community occupies a significant place in restorative approaches to crime and other instances of conflict. While there a number of meanings attached to the idea of community, restorative justice proponents generally view community, however defined, in positive terms. Why is the concept of community so enticing? With this in mind, Pavlich assesses both the promise and the danger underlying restorative justice’s appeals to community. There is much of value in revitalizing communal life to redress wrongdoing and injustice. At the same time, Pavlich warns against fixed or absolute images of community and their incipient totalitarianism. As an alternative, he proposes that Derrida’s concept of hospitality offers a better way of thinking about how to live with others justly without becoming a fixed community.

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.

Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?

Redekop, Paul.. Changing Paradigms

"After several decades of working in the field of restorative justice, Paul Redekop concludes that punishment is a major obstacle to healthy societies, families, and schools. Punishment can be so damaging, cruel, and barbaric, especially to children, that it should be replaced with restorative discipline, and societies should move toward a punishment-free justice system." (Publisher's description)

Restorative Justice Consortium.. Principles of Restorative Processes 2004

This Statement of Principles is a revised version of the Statement of Restorative Justice Principles published in 2002.These Principles form the basis for restorative practices in all settings, using all models, where the primary aims are to repair harm and promote dialogue.This document will be reviewed on a regular basis and may be amended following consultation. This document will be followed by an explanatory document, which will go through each principle and explain in more detail their meaning. This will be particularly aimed at those new to Restorative processes. Restorative practices are underpinned by a set of values, these include: Empowerment, Honesty, Respect, Engagement, Voluntarism, Healing, Restoration, Personal Accountability, Inclusiveness, Collaboration, and Problem-solving. (excerpt)

Restorative justice and coercion

by Lynette Parker: Recently, I had a brief Twitter conversation with HMP_Chaplain about restorative justice and coercion. HMP_Chaplain commented on a statement by a Sycamore Tree Project facilitator in England and Wales that “if they make RJ compulsory she will pull out. I responded in a couple of Tweets: “Can understand...voluntariness is essential in RJ. Coercion can stand in the way of dialogue but doesn’t have to.” “Also RJ is more than a process its a way of thinking that can inform all interactions with offenders.”

Restorative justice in the Cambodian community: Challenges and possibilities in practice

from the paper by Pen Khek Chear: ....the syncretic beliefs among Cambodians lead them to also use gru to alleviate suffering and deal with conflict. Here is a personal example from the author of this paper that occurred in the Cambodian American community: There was an attempted robbery at my aunt’s liquor store, where one of the robbers was shot and killed in the store by police. The liquor store is in a predominately African American community; the robber and the police officer were also African American. The local community was outraged when they heard about the killing and suspicious of the fact that my aunt refused to talk to press or community members about what had happen. This led to a boycott of her store. She went to a gru for help. The gru said that, in order to alleviate the current problems, she had to paint the back of two turtles and let them go into a local creek. This would send the bad spirits away. She did as she was told. The boycott eventually stopped and after some months, things went back to normal.

Restorative justice in the Cambodian community: Challenges and possibilities in practice

The principles and practices of restorative justice, as they’ve been developed in Western contexts, do not fully match the social values in the Cambodian community. Hierarchal social values, such as chbab srey and chbab proh, conflict with the non-hierarchal ideal in circles. In VOM, gender roles and expectations are active and challenges victim empowerment ideals. The victim and offender dichotomy, a relationship of right and wrong, challenges the Buddhist value of equanimity. FGC is perhaps the most compatible practice to Cambodian social values. The principles of restorative justice do match with Cambodian social values in the mutual recognition of interconnectedness and collective responsibility. The preservation and re-building of culture is very important among Cambodians because of the social and economic losses incurred during the Vietnam War and Khmer Rouge period. Any effort to promote restorative practices in the Cambodian community should bear this in mind. (from the paper)

Review: Child victims and restorative justice: A needs-rights model

from the article by Bill Lyons in Law & Politics Review: ....Combining the right to participate from the Convention on the Rights of the Child with an empirical analysis of a child's need to regain control, participation emerges as a critically important need and right for at least three reasons. First, for immediate instrumental reasons, participation is both an immediate coping mechanism and is expected to improve criminal justice outcomes. Second, for longer term developmental reasons, meaningful participation in experiential learning opportunities is a developmental step toward empowering young adults to master the problem solving skills necessary to make democracy both possible and desirable.