Restorative Justice: A Sane Alternative

Historically, when a member of the tribe or group committed a terrible crime, they were banished. But crimes that were not so terrible, required a different sort of response because all members of the community were important for the harvest, or the hunt, banishing someone caused hardship for everyone, not just the person banished.

The aboriginal tribes in New Zealand, the Maori, and the Navaho of North America, used circles when a some in the community was harmed, or when a crime was committed. They gathered the community together and discussed the situation; they called on the person who committed the crime to accept responsibility and to make the situation right.

Our own, western culture has, unfortunately maintained a type of banishment, we send out criminals to prison. It is, I would argue, a form of banishment. Prisons in the late 1700’s were designed to remove the offender from the community and give them time to reflect on their actions. Offenders were isolated from one another to prevent them from communicating and commiserating.

Today’s prisons are so full there are three people to cell. And they are designed to provide as much profit to the owners of the prison as possible.

That’s right prisons are no longer owned by society, by you and me, they are owned by private companies, which is some way is nice, because we do not have to accept responsibility for the fact that the people who are in prison are treated in the most dehumanizing and disrespectful ways.

Our process of banishment has created a community of the banished and the outcast- those with no hope of ever returning to “society” because the label of CRIMINAL has such power. Very often they cannot get legitimate jobs, they cannot get decent housing, they cannot vote in elections on issues that impact them.Restorative justice takes a different approach to crime and to social relationships. In Restorative Justice, we seek first to know what harm was done and to whom. We then ask the person(s) harmed (victim) what they need in response to the harm. This creates obligations that must then be met by the person responsible for the harm done. This process engages all parties and gives the offender the opportunity to be restored back into a community that cares about their well-being and wants them to succeed in life.

Howard Zher offered these two different views:

Criminal Justice	Restorative Justice
Crime is a violation of the law and the state	Crime is a violation of people and relationships
Violations create guilt	Violations create obligations
Justice requires the state to determine blame (guilt) and impose pain (punishment)	Justice involves victims, offenders, and community members in an effort to put things right
CENTRAL FOCUS: offenders getting what they deserve	CENTRAL FOCUS: victims needs and offenders responsibility for repairing harm

Zehr believes these two models answer different questions:

For CJ the questions are: What law has been broken? Who did it? What do they deserve?

For RJ the questions are: Who has been hurt? What are their needs? Whose obligations are these?

We know that the current justice system is focused on the offender and the victim is often seen as unnecessary. Our current view is that crime is committed not against an individual, but against the state. The state sets the norms and enforces those norms through punishment. The problem with this approach is that it doesn’t help facilitate healing, repair or reconciliation between members of the community. Because we have labeled these people “criminals”,  we have stripped them of their humanity, allowing horrific treatment in prisons and jails where even the possibility of rehabilitation is rejected. Obviously there are problems with this kind of a system. One only need glance toward the prison industrial complex to see how far off base we truly have come.

The thing is, we know from hundreds of thousands of interviews, from years of research and anecdotal information, that people need more when a harm, or a crime, has been committed. And if you have even been a victim of a crime, you know this… 

From a justice system Victims need:

1. Information. Victims get stone walling by police-this no longer concerns you, get out of the way and let the police do their job.
2. Truth telling. The current system is set up for people to lie and for their lawyers to “get them off”. Plea bargains and deals are the realm of the prosecutor and the victim has no input. The offender is set up to lie-they are punished regardless of telling the truth, so why do it, there is no incentive – only guarantee of punishment.
3. Empowerment. Victims are disempowered, removed from the process and given no voice. Stake holders and community members have even less voice.
4. Restitution or Vindication. The symbolic recognition is important to victims and it plays a role in the need to “even the score” it gives the victim an opportunity to take the obligation and responsibility off themselves and put it on the offender where it belongs.

From the justice system Offenders need:

1. Accountability. Offenders need a safe place to accept responsibility for their actions and a process that encourages empathy and responsibility and transforms shame.
2. Encouragement to experience personal transformation, including Healing of harms that contributed to the offending behavior, opportunities for treatment for addiction and other problems, and a change to understand their own personal competencies
3. Encouragement and support for integration into the community- Our current system doesn’t really provide support for re-entry and often people who have committed crimes are carrying shame from their actions. Shame keeps us isolated and separate from one another, often leading to isolation and seeking out others with the same “criminal’ label.

From the justice system Communities need:

1. Attention to their concerns as victims– Communities, (stakeholders, witness and the general community) respond to harm caused by crime and other offences with generalized fear. They need to know that the community is safe from further harm.
2. Opportunities to build a sense of community and mutual accountability that focuses on relationships and calling people back in.
3. Encouragement to take on their obligations for the welfare of their members, including victims and offenders, and to foster the conditions that promote healthy communities.

The Restorative Justice process invites all parties to participate, offender, victim, and community stakeholders.

In the restorative justice process, accountability and outcome are agreed by all parties, not imposed by the state, or some outside force. These are inclusive collaborative processes with consensual outcomes. The final question in the restorative justice process is: “what needs to be done to repair the harm?” This allows the person who was harmed and the community stakeholders to reflect on their needs. The person who committed the harm also has input, because if they are asked to do something they cannot possibly accomplish or complete, it will only lead to more shame and more difficult behavior. The collaborative process allows for a realistic, concrete, mutual agreement that is achievable. Those who participate in the restorative justice process are less likely to reoffend, with a reduction in recidivism of 30-50%.

It is clear to me that our current criminal justice system is not functioning in a way that actually improves society. I believe that restorative justice is more effective, more compassionate way to address the harms that are committed with our communities. Zero-tolerance doesn’t work. While practices are not a panacea, they can make a difference in healing our bruised and hurting world.