Exploring the Possibilities: Restorative Justice as a Response to Harm Doing
By Alana M. Abramson
In early June, an International Conference on Restorative Justice was held in Vancouver, British Columbia. Around 300 participants from all over the world gathered to share their experiences with using restorative justice practices to deal with crime and conflict in their communities. Although restorative justice has its roots in many indigenous justice practices, the widespread use of these non-punitive models is a relatively new phenomenon in contemporary societies. Academics and practitioners from South Africa, Australia, United States, and New Zealand who advocate for restorative justice had a strong presence at the conference and the groundbreaking work that is being done in Canada was also showcased.
Restorative justice was described often during the gathering as a “social movement;” however, it is one that many Canadians know little about. Although its supporters are social workers, filmmakers, representatives from aboriginal communities, people from faith communities, victims and offenders involved in serious crime, teachers and school administrators, police, academics, and social justice advocates, even professionals in the criminal justice field are sometimes unsure of the meaning of restorative justice. So what was all the buzz about in Vancouver? What motivated people from all over the world to spend time and money to come together and talk intensely about restorative justice for three and a half days?
What is the connection between this issue and the law and social justice?
Restorative justice is an approach to that involves re-thinking our definition of crime and our responses to it. Restorative justice has been called a paradigm or a lens through which one may view the world. As there is not one agreed upon definition for restorative justice, in order to understand this philosophy, it is helpful to compare it against what many of us know about retributive or punitive justice, which is what our current criminal justice system is largely based upon today. In retributive justice, the focus is on finding the answers to three basic questions:
- What law has been broken?
- Who did it?
- What punishment do they deserve?
For restorative justice, the questions are very different. This approach focuses on answering the questions:
- Who has been harmed and how?
- What do they need?
- Who has the obligation to attend to these needs?
- What needs to happen to make things right?
According to a leading restorative justice practitioner, Eric Gilman (2009), restorative justice holds that:
- Crime is about harm done to individuals and the community, and addressing crime meaningfully requires the response to be focused on that harm.
- Those who have been harmed by a crime need to have a primary, active role in determining what needs to be addressed, and they need to have a voice in how the resolution should happen.
- However the community chooses to respond to a crime, it should result in the needs of victims being significantly and meaningfully addressed.
- A focus on punishment is an inadequate response to addressing the harms done by crime. It doesn’t touch on many important issues that need to be addressed.
- Holding an offender accountable for the harms they have caused, having the offender actively participate in how to make amends for the wrong they have done, is of far greater value than punishment.
- The offender has incurred an obligation to victims and the community that needs to be met. Active community participation is essential to creating safe and healthy communities.
- The community as a whole, not the justice system in isolation, has the ability and resources to effectively respond to the harms of crime and to ultimately restore victims and integrate offenders into the community as healthy, whole contributing members of society.
Restorative justice offers a different way of thinking about crime because, instead of focusing on a law or rule that has been broken, it focuses on the harm done and what needs to happen to promote healing that harm. Harm can take many forms including financial, emotional, physical, spiritual or relational. The same crime can result in different harm for different people and can cause harm to more than just the identified victim. For example, when someone commits a crime often the families, friends and neighbours of both the offender and victim feel harmed. They may experience feelings of shame, disappointment, loss, and confusion. Similarly, the offender can experience harm as a result of his or her actions. Many of those who commit harm to others experience regret, loss of self-esteem, and even trauma in the aftermath of crimes they have committed. Relationships and reputations are lost and often offenders can be overwhelmed with the prospect of taking responsibility and trying to make amends for what they have done. Sometimes the harm caused is so deep and so widespread, it is impossible for one person to try and address it on his or her own. The criminal justice system and its responses can make this harm worse instead of better. Restorative justice seeks responses that minimize and heal harms as well as restore relationships that have been broken through a criminal event.
One of the main differences a restorative justice approach has over the retributive system is that once the harm is identified, the question of “what do you need?” is posed to those experiencing harm. In the current justice system, the focus is not on asking the parties what they need but rather the imposition of what a third party, usually a judge, thinks people need to see that justice is done. Often this outcome is based on what has happened in similar cases before, what the law says, and what the lawyers and judges feel is appropriate. While this process might lead to outcomes that are comparable between cases, it is unlikely that a punishment imposed by a third party will address the actual needs of the parties involved. All too often what is “legally fair” does not feel like justice to the offender, the victims or the community because their needs have been ignored.
As discussed, the focus of restorative justice is very different than the conventional system so it is no surprise that restorative processes or models look very different compared to a court room. As long as the persons who have caused harm take responsibility for their actions (which is usually the case – most criminal cases do not go to trial as the accused pleads guilty; Thomas, 2007), a restorative approach is an option. Participation for the accused and the victims is voluntary and careful preparation is conducted individually with the parties and their family before any other process takes place.
There are three main models that stem from restorative justice values, each involving a face-to-face meeting between the parties. The Victim-Offender Mediation model usually involves a facilitated dialogue between the person harmed and the person who caused the harm. A Conference is similar to Victim-Offender Mediation but involves the two parties most directly affected and supporters such as parents or others who care about or have been affected by what happened. The third model is a Circle process which draws together many more participants, sometimes including lawyers, police, and judges. While there are other models and approaches, generally most restorative justice processes take one of these three forms and they are facilitated by a neutral, trained third party who helps support those involved to hear each other respectfully and work towards resolution. Instead of the process being dictated by professionals, the people most directly involved are empowered to talk together and find ways to understand what happened and how to move forward in a way that feels fair, just, and restorative for all.
Not all cases involve a formal restorative justice process offered by a community or system-based program. Some restorative conversations are initiated by the victims themselves and include many of the healing elements of formal restorative processes. Shannon Moroney shared a story at the Vancouver conference that outlines the rich benefits of restorative dialogue. Shannon (2009) was in a happy marriage with hopes of starting a family with her new husband, James. Everyone loved James and their relationship was strong and healthy. One day the police showed up on Shannon’s doorstep and told her that James had been charged with various offenses of a sexual nature involving total strangers. In complete shock and horror, Shannon witnessed the various processes of her husband being processed by the criminal justice system. She lost her job, many relationships, her sense of self, and her future plans. Shannon herself was not considered a victim by the system and was given no support – instead, she was “guilty by association” and stigmatized by professionals within the system as well as members of her community. When Shannon learned about restorative justice and started being asked questions about her needs and what she needed to begin healing, the layers of pain started to slip away. She felt heard, acknowledged and empowered to pursue what she needed for her own healing which included conversations with James about why he had done the things he had done and sharing how deeply she was affected by his actions. Although not a conventional path to healing, it was her path and she was supported by ideas of restorative justice to take it.
There are other stories of healing and transformation that have taken place through restorative justice process and the academic research is in the process of demonstrating the effectiveness of these approaches (Umbriet, Coates & Vos, 2004). For many in the field, restorative justice shows great promise as an alternative to punitive, retaliatory approaches that may create further harm for both victims and offenders. For many advocates, they believe a restorative approach should be the first approach when dealing with harmful acts and the formal, criminal justice system should be used as a back-up. There will always be the need for courts and prisons but the demand for these formal processes could be lessened greatly if more Canadians could make a paradigm shift from punitive to more healing forms of justice.
Questions to Consider
- For restorative justice to be a viable approach, people must enter the process voluntarily and persons who cause harm must take responsibility for their actions. For situations that do not meet this criteria, what should be done to work towards healing for the parties?
- In restorative justice, the goal is for communities to take greater ownership in dealing with harm. What are the dangers and opportunities when implementing this perspective?
- According to research (Umbriet, 1989; Umbriet, Coates & Vos, 2004) victims can experience higher satisfaction after going through a restorative justice process compared to people who do not. Why do you think this occurs? Are there things that the formal system could do to be more responsive to victims of crime?
- Restorative justice is different than rehabilitation as it focuses not only on healing the offender but also the victim and others affected by a crime. What benefits do you see as a result of this focus on healing for everyone?
- According to Statistics Canada Aboriginal people in Canada are at much greater likelihood of being both victims and offenders. The devastating effects of colonization and the existence of a foreign justice system have directly contributed to this social justice issue. How might restorative justice work with Aboriginal justice processes such as healing circles to heal some of the harms within these communities?
Resources for Further Exploration
For a list of in-line resources and articles: http://www.restorativejustice.org/
For stories of restorative justice in serious crime - http://www.theforgivenessproject.com/
For information on Aboriginal overrepresentation see http://www.statcan.gc.ca/daily-quotidien/060606/dq060606b-eng.htm
Moroney, S. Guilty By Association. Presenter: Restorative Practices International 2nd Annual Conference, June 1, 2009. Vancouver, BC.
For more information on Shannon’s story as summarized in this article, see www.shannonmoroney.com
Gilman, Eric. What is Restorative Justice? Clark Country Juvenile Court. Retrieved June 11, 2009, fromhttp://www.sfu.ca/cfrj/fulltext/gilman.pdf
YouTube Examples of Restorative Justice:
For full-length films on Restorative Justice - http://www.heartspeakproductions.ca/
Thomas, J. Youth Court Statistics, 2006/2007. Statistics Canada – Catalogue no. 85-002-XIE, Vol. 28, no. 4. Retried June 11, 2009 at http://dsp-psd.pwgsc.gc.ca/collection_2008/statcan/85-002-X/85-002-XIE2008004.pdf
Umbriet, M. Coates, R. & B. Vos. (2004). Victim-Offender Mediation: Three Decades in Practice and Research. Conflict Resolution Quarterly, 22(1).
Umbriet, M. (1989). Crime Victims Seeking Fairness, Not Revenge: Toward Restorative Justice. Federal Probation, 53(52).