RESTORATIVE JUSTICE: THE ROLE OF THE COMMUNITY
by Paul McCold, Ph.D.
Paper presented to the Academy of Criminal Justice Sciences Annual Conference,
Boston, March 1995 by Paul McCold, Department of Sociology and Criminal Justice,
Old Dominion University, Norfolk, Virginia.
This paper discusses the need for a new approach to justice, especially criminal
justice.The broad principles of the Restorative Justice perspective are reviewed, and
examples provided of how these principles are applied in practice.The author then
suggests that the role of the community in the victim-offender-community relationship
needs to be more fully developed to complete the paradigm. After discussing the various
levels of "community", the needs and responsibilities of communities are discussed. The
author then considers the paradigmatic implications, and suggests how these principles
might be applied in a holistic restorative justice approach.
Our country seems gripped in an addiction to a powerful drug, one more destructive than
all illegal drugs combined. This drug is vengeance. Vengeance seems the primary driving
force behind our current criminal policies. When we feel the pain and fear caused by
crime, we demand ever greater punishment of offenders, as if this will bring relief. As a
country, we seem to be turning more and more to harsher punishment, as if we know of
no other way to stop the violence. In spite of huge increases in prison populations over
the recent years, there never seems to be enough punishment to satisfy our craving. The
escalating level of the "get-tough" rhetoric only seems to fuel the public fear, which
generates an ever greater demand for punitiveness.
Existing structures, institutions, relations, and values create the problems that we then
turn around and ask them to solve—or rather, control—using the very same structures,
forms and values, which in turn leads to more problems and greater demand for control.
(Harris , 1991)
We are already the most punitive nation in the Western world, and still we continue to
construct more prisons. In spite of the lack of any credible empirical evidence that
punishment of any kind or amount reduces crime, American political institutions continue
to get tough on crime. The myth that punishment can prevent violence (Pepinsky &
Jesilow, 1985) seems rarely challenged. "And because people learn from the nature of the
processes in which they participate, as well as from the objectives of those processes, we
should give greater attention to what the process teaches and how it is experienced"
(Harris, 1991). What lessons does our punitive and obedience-oriented criminal justice
system teach? If we could only deal crime a lethal dose of vengeance . . .
We encounter injustices daily, in our homes, our places of work, and in the affairs of
nations. We can ill afford to respond to the grievances, large and small, in ways that are
likely to prolong and escalate conflict, perpetuate cycles of violence. (Peachey, 1992, p.
556)
The American public's desire for vengeance is deeply ingrained in our history (Newman,
1978). The widely held belief that increasing the punishment for offenders will lead to
fewer offenders has proven to be a myth repeatedly through human history. Only by
renouncing the social values and institutions which promote the myth that violence can
be overcome with punishment—evil with evil—and exposing the "myth of redemptive
violence" (Wink, 1992), can we ever hope to escape the cycles of vengeance and violence
(Mackey, 1990).
Ultimately, our current system of criminal justice is in pursuit of safety and justice for our
communities. A punitive and vengeful approach to criminal conflict can only increase the
level of violence which is already endemic to our culture (Pepinsky, 1991).
The cries for retribution throughout this land are cries for safety, for justice, and for relief
from an unworkable criminal justice system. So long as we hear the cries for retribution,
we know that we have not achieved justice. The community has been broken and has not
been restored. (Mackey, 1990, p. 15)
There is a growing amount of literature on an alternative approach to punitive justice.
Restorative Justice offers a different "paradigm" of crime and society's response to it—
and is suggested as a replacement for our existing criminal justice system (Zehr &
Umbreit, 1982, Weitekamp, 1991, Galaway, 1989).
[Restorative Justice] is not just another technique for trying to solve the old problems of
criminal justice. It is a practice that contains the seeds for solving a new problem—the
inadequacy of the criminal justice system itself, as it lurches from crisis to crisis, based as
it is on an outdated philosophy of naked revenge. (Marshall, 1992, p.26)
The paradigm is shifted once the implications of the rejection of punishment as a
response to conflict begin to emerge. This perspective grew out of work with crime
victims and efforts to help victims find a sense of healing. 1 "Forcing the perpetrator to
suffer does not really alleviate the victim's distress, nor does degrading the wrongdoer
erase the humiliation felt by the injured party" (Karmen, 1990, p. 31).
Restorative Justice views criminal conflict as an injury to personal relationships and the
"property" of those involved (Christie, 1977). It replaces "punishment" of the offender as
the basis for justice, with attempts to heal injuries of all parties involved in criminal
conflict: victim, offender, and community. Crime is a serious form of interpersonal
conflict involving concrete harms (Zehr, 1990, p. 184). Crime is only one type or level of
interpersonal conflict which becomes a crime when there is serious injury to a person or
property. Offensive and unhealthful acts affront the sensibilities and preferences of
society, but these conflicts are social problems, annoyances, public health problems—not
crime. 2
Conflicts are the property of the victim, the offender, and their local community. Victims
are people who are directly injured by crime. The victim might not be a person, per se, in
the case of property crime against businesses. The victim might also be the community, if
community owned property is damaged. Otherwise, the community has a direct interest
in the conflict, but is not the victim. 3"Crime is a violation of people and relationships"
(Zehr, 1990). The community, family members of the victim,and even the family
members of the offender are all secondary victims, and have needs directly related to the
crime. This is much different than viewing crime as an offense against the state, the
society, or the community. Also, the offender is not the victim. While most offenders
have previous histories of victimization, each of those have a corresponding offender, and
are not at issue regarding present responsibilities.
Crime victims have a variety of needs created by the harms they suffer in the crime. The
loss of control and orderliness experienced in their lives by victims is often more
damaging than any physical or material loss suffered. They need to bring meaning to the
crime event to restore predictability and order in their lives. Crime victims need
vindication that what happened to them was wrong and undeserved. They need
opportunities to express and have validated their anger and their pain. Victims need to be
restored to a sense of control and safety in their lives (Zehr, 1990).
Among crime victims' needs are for the offender to understand the injury caused them, as
well as their family and friends. If the offender could be made to appreciate the injury
caused and develop a sincere sense of lament, the victim could have the chance to heal
emotionally from the harm and go on with their lives. The act of holding offenders
accountable for their actions not only goes a long way toward healing the victim, but is
the beginning of bringing some real healing to the offender as well.
Offenders do not need to be punished. They need to be held accountable. Real
accountability includes taking responsibility for the results of one's behavior. Offenders
must be allowed and encouraged to help decide what will happen to make things right,
what they can do to undo the harm they caused. Only by empowering offenders in this
process can they learn to take responsibility—to begin to learn to become responsible.
Restorative Justice is very different from our repressive and punitive system of justice
(the obedience model)4. Much of the theoretical perspective of Restorative Justice
evolved "experientially" from the Mennonites' involvement in victim and offender
programs culminating in the seminal book Changing Lenses by Howard Zehr (1990).
Other religious groups who had been exploring related criminal justice reforms quickly
included the banner of restorative justice in their social ministry. As the "paradigm" has
developed thus far, however, the practice has tended to lead the theory (Knopp, 1992,
Rock, 1994, p. xiv). "[R]estorative justice is hardly a paradigm at this point. Indeed, I
think we are not very close to having even the skeleton or the outlines of a new
paradigm" (Harris, 1989, p. 37). Much has occurred since the release of Changing
Lenses, and the paradigm continues to evolve.
Until very recently, Restorative Justice approaches, in practice, have been limited to (a)
victim restitution programs, (b) offender accountability and victim awareness programs,
and (c) victim-offender reconciliation programs. Karmen (1990) suggests that the support
for restorative schemes include at least four distinct groups with divergent goals and
clashing philosophies. 5 The four groups view reparation as 1) a punishment oriented
toward the offender (victim in line after the state), 2) a treatment mechanism for the
rehabilitation of the offender (offenders need accountability), 3) a way to help victims
(victims have a right to recompense), and 4) a vehicle for reconciliation of relationships.
Such divergent interests have produced a wide variety of program approaches in the
effort to implement Restorative Justice principles (Roberts, 1990, Crawford, et al., 1990).
One early restorative approach has been restitution. Offenders owe something to their
victims—at least they should pay the victim for out of pocket financial expenses
occurring as a result of their wrongful act. Restitution is not new, and its recent
rediscovery has led to a plethora of programs implemented in diverse jurisdictions which
seem to receive wide-spread general popular support.
Advocates of restitution—and there are many—argue it's time to get back to basics.
Victims shouldn't be neglected by a system ostensibly set up to look after their interests.
Criminal acts are more than symbolic assaults against abstractions like the social order or
public safety; real flesh-and-blood people suffer losses. Offenders shouldn't be
prosecuted solely on behalf of the state or "the people". Justice demands that victims be
"made whole again"—restored to the condition they were in before the crime occurred.
Convicts must right their wrongs, make amends, and repair what they've damaged.
(Karmen, 1990, p. 277)
Why should justice systems require offenders to repair the damages their crime inflicted?
Under what theory of punishment? As an added punitive deterrent, an additional "fine"
imposed upon the offender would add little to a threat of a longer prison sentence. As
rehabilitation, the offender might gain some insight to help change his behavior, but the
concern is for the offender, not the victim. Likewise, under a retributive scheme,
restitution could also be justified to make the punishment better fit the crime, also
directed at the offender. 6 However, to combine the justice aspects due to victims and the
therapeutic effects perceived for offenders requires an entirely different theoretical
perspective.
No theory of punishment includes an equal place for crime victims' concerns. 7 That no
theory of punishment is adequate to resolve victims needs is self-evident, although our
current system is renown for adding additional injuries to crime victims. Restitution or
community service under the existing justice system will necessarily be offender-focused,
and therefore, anti-victim biased (Shapiro, 1990). "Even when courts order restitution,
and the judgment thereby seems to favor the victim, restitution as a sentencing option still
embodies, first and foremost, the penal and correctional interests of the state" (Karmen,
1990, p. 282, citing Triebwasser, 1986).
There has been a recent flurry on the part of some correctional authorities in the US to
implement programs in their facilities stressing the importance that offenders (especially
juveniles) understand the consequences of their actions. The federal government,
California, and Minnesota have taken legislative and administrative action to include
victim awareness sensitivity training in their rehabilitation programs under the name of
restorative justice (National Victim Center, 1994, California Youth Authority, 1994).
Often times, these programs include victim restitution and community service sentences
in their package of restorative justice reforms, along with intermediate community-based
surveillance and sanctioning systems (Bazemore & Maloney, 1994, McLagan, 1992).
Yet, it seems self evident that any restorative scheme implemented and operated by
correctional institutions will also necessarily by offender focused.
Concurrent with the growth in this country and elsewhere in the concern and services for
crime victims have been programs offering victim-offender mediation/reconciliation
services (VOM and VORP). "Victim-offender reconciliation programs, usually run by
nonprofit community groups, use negotiation and mediation to make the process of
reparation therapeutic for both parties" (Karmen, 1990, p. 285). These programs are
based upon the premise that crimes are harms done by one person to another person, and
that the resolution of justice must directly involve the parties to the crime. VORP, like
restitution, assume that offenders owes something to their victims, and need to assume
responsibility to the victim directly. The details of what is owed is worked out in an
agreement directly between the victim and offender. A trained mediator helps the parties
find a mutually satisfactory method of reparation and restitution.
Victim-Offender programs have been implemented in a number of communities in the
United States and Canada. Many other countries are developing growing programs,
including Japan, England, Germany, Finland, the Netherlands, and Sweden (Umbreit,
1994). In New Zealand and Australia, these principles are incorporated into their basic
approach to juvenile justice (Galaway, 1992, Morris & Maxwell, 1993, McElrea, 1994).
Early results from program evaluations conducted thus far, demonstrate the success of
this approach for victims, offenders, and society (Umbreit, 1994). However, as examples
of Restorative Justice principles in practice, VORP/VOM must be seen as only a part of a
larger whole.
It is proposed that the practice of victim-offender reconciliation falls considerably short
of the structural requisites suggested by the restorative paradigm: The practice reveals,
instead, an astructural bias, lacking in deliberate strategies to address the interdependence
of broad social factors that give rise to conflict and impede or shape its resolution. (Mika
1992, p. 561)
What are the structural processes that Restorative Justice proposes to alter the social
inequities and values that contribute to the production of crime on the street? "The
question becomes whether reconciliation programs and organizations can be more
sensitive and responsive to the larger profile of conflict that envelops episodes of crime
and delinquency" (Mika 1992, p. 563) . Overly focusing on the process of saving
individual victims and offenders could divert attention from the root causes in society
that continuously produce a never ending supply of victims and offenders.
Since Restorative Justice has begun to crystallize as a paradigm only recently, it is
expected that implementing systems of Restorative Justice will involve a trial-and-error
developmental process. Those implementing various programs undoubtedly have
differing agendas. "There are so many different aims and touted benefits that no
sweeping conclusions about the effectiveness of programs now in operation can be
drawn" (Karmen, 1990, p. 296). There is a danger in promising to be all things to all
people in criminal justice reforms (Griset, 1987). It is important that this "restorative"
movement clearly delineate its theoretical principles.
The answer to this "astructural bias" of Restorative Justice approaches may reside in the
least explored leg of the three legged stool—community. Delineating the role of the
community in the Restorative Justice paradigm is essential to complete the theoretical
structure. While individual "community" citizen's have been involved as volunteer
mediators or service providers, restitution, community service, victim awareness and
VORP have all failed to include a strong role for the whole community in the process.
"[L]aying out ways to operationalize the admirable notion of eliciting more active
community involvement in the reconciliation process remains an elusive task. "(Harris,
1989, p. 35)Individual citizen voluntary participation in the justice process is a valuable
beginning. 8
In a society with values emphasizing citizen participation in the affairs of state,
increasing citizen participation does not require further justifications: it is a goal
sufficient in its own right and does not need to be defended as leading to some more long
term benefit. [Increased citizen participation will occur in two ways]1) citizen
victims,and 2) citizen negotiators, citizen volunteer case managers. (Galaway, 1989, p.
112)
Yet, the paradigm is nearly always expressed as equally including victim, offender and
community. Surely, more is expected from the community than a commendable increase
in citizen volunteer participation and the involvement of individual victims and offenders.
Much conceptual work remains to be done....Many issues remain undeveloped or
unanswered. Community is an elusive, oft-abused term. What does it mean and how
could it be given reality in a restorative approach? What is the proper role of the state?
(Zehr, 1990, p. 221)
How have authors of material published on Restorative Justice seen the role of the
community in the paradigm since Zehr asked those questions? The remainder of this
paper will review how the role of the community has been discussed in the existing
Restorative Justice literature, and explore the possibilities of the role of the community in
the further development of the paradigm.
Toward a Restorative Justice Paradigm
One of the foundational principles of Restorative Justice is the idea that the injury caused
by crime is the property of the victim, offender, and their local community. "The basic
principles of restorative justice require a fundamental shift in the power related to who
controls and owns crime in society — a shift from the state to the individual citizen and
local communities" (Umbreit, 1994, p. 162).
The resolution and prevention of crime demands a positive effort on the part of society
and assumption of responsibility by the community. Such responsibility is doubly evaded
at present: by the community in leaving crime matters entirely in the hands of statutory
agencies, and by the latter in considering that when a culprit has been adjudicated guilty
and allotted a punishment that is the end of their responsibility. (Marshall, 1992, p. 25)
Crime control has to be 'communized'. Most crimes are problems between an actor and a
victim within their community. Most crimes of aggression are committed between
persons living in the same community. It is, therefore, a problem that has to be coped
with by all the members involved and not by professionals who are in fact outsiders.
(Mackey, 1981, p. 52, citing Bianchi, 1978)
The local community is a further important aspect of restorative justice. The more that
crime and crime interventions are conceived in terms of social conflict, the more
procedures will focus on interpersonal relations. Socially integrative strategies for dealing
with conflict should increasingly include the local community in reparation proceedings.
Existing social networks should be mobilized, and creative options for dealing with
deviant behavior should be stimulated. An active inclusion of the local community could
encourage decriminalization: deviant behavior becomes a social concern, and causal and
relational conditions of delinquency are more clearly revealed. (Messmer & Otto, 1992,
p. 2-3)
Strong Restorative Justice programs are characterized by an environment that includes
local community control. Victim-offender reconciliation programs which have been most
likely to succeed respond to community needs and local culture; where planning and
implementation remain local initiatives; where services make use of, or work closely
with, local resources. (Mika, 1992, p. 564 )
It may be that part of the problem in addressing crime on a local level stems from the lack
of a sense of "community". The devastating conditions in our inner cities are both a cause
of, and a result of criminal conflict (Stark, 1987).
Much of our trouble stems from killed neighbourhoods or killed local communities. How
can we then thrust towards neighbourhoods a task that presupposes they are highly alive?
I have no really good arguments, only two weak ones. First, it is not quite that bad. The
death is not complete. Secondly, on of the major ideas behind the formation 'Conflicts as
Property' is that it is neighbourhood-property. It is not private. It belongs to the system. It
is intended as a vitaliser for neighbourhoods. (Christie, 1977, p. 12)
Defining community
If general experience to date with 'community corrections' and 'community policing'
offers us any lessons, a clear imperative would be to specify more carefully what we
mean by 'community' or 'communities' and how and why it or they would be involved.
(Harris, 1989, p. 35)
Within the holistic Restorative Justice paradigm, the community cannot be specifically
defined a priori, as it depends upon the nature of the conflict to which it is applied.
Restorative Justice "concepts are directly relevant to the harms suffered in the course of
everyday life and routine conflict, and where the event is not classified as a crime"
(Peachey 1992, p. 552). The community with standing in any given conflict will be
dependent upon a number of factors, including the level of harm inflicted, the
relationship of the disputants, and the aggregation represented. There are many different
levels of community, as there are different levels of disputes. Each offender and each
victim are members of several communities and informal organizations—personal
communities—family, friends, neighborhood and school organizations, churches and
community organizations. We are all members of our local community, municipal
subdivision, metropolitan area, state, federal and societal level "communities". Ultimately
we are all members of the human community.
Consider a dispute between young siblings. The boundary of the community whose
interest is at stake is limited to the family, given the probable level of injury incurred.
Should the conflict exist between married partners and the injury involved physical harm,
the boundary of the community with an interest undoubtedly widens to include, at least,
other non-primary family members and associates.Where the conflict is between
ambassadors from differing countries, the scope of the community at stake is, again, on a
much different scale.
How, then, should the community be defined when the dispute is "normal crime" (assault,
robbery, theft, vandalism, etc.)? This is the type of criminal harm most often feared by
the public—stranger crime. 9 The community with an interest could include the entire
American public, since individual criminal conflicts contribute to the general fear of
crime in our society. However, if we wish to avoid "stealing the conflict" (Christie,
1977), it seems prudent to consider the minimal necessary boundary of community as that
which is limited to parties with a direct stake (need or responsibility) in the specific
conflict. "The resolution of conflict is the province of the entire community rather than
the exclusive domain of specialized legal organizations. The conflict is not extracted
from the community" (Cordella, 1991, p. 42).
For my purposes, as applied to criminal harm, I will use the term local community to
mean "a social group of any size whose members reside in a specific locality, share
government, and have a common cultural and historical heritage", as per the Random
House College Dictionary (Stein, 1979). 10 There is also a personal level of community.
This includes those individuals who know and are personally involved in the lives of the
victim and/or the offender. Except where I preface the term community with "personal", I
will be referring to the local community as defined above. The role of the local
community is the primary focus of this paper.
A useful framework in the consideration of the role of parties involved in restorative
conflict approaches has been provided by Reverend Virginia Mackey (1990, p.42). The
victim, offender, and community each have roles defined by their injury and
corresponding needs, and their responsibilities in relationship to a given conflict. 11
Injury
Need
Responsibility
Victim
Offender
Community
Society
There appears to be a direct relationship between injury, need and responsibility. The
injuries caused by crime produce a need to repair those injuries, and the need to repair
injuries produces a responsibility to take affirmative action to seek satisfaction of these
needs. The next section of this paper discusses the injuries, needs, and responsibilities of
the local community as presented in the available literature on Restorative Justice as of
the beginning of 1995, to assess the current level of development of the paradigm along
this dimension.
Community's Needs and Responsibilities
Restorative Justice attempts to meet the needs of the victim, offender and community.
What, then are the community's needs? Certainly, the community needs a sense of
justice. Like the victim, the local community suffers a loss of sense of safety, and needs
to be reassured that something is being done about it, and that "steps are being taken to
discourage its recurrence." (Zehr, 1990, pp. 194-195).
Communities need to know there will be a firm and immediate response to violent
crime—that such behavior will not be tolerated. Otherwise, fear and a sense of
hopelessness begin to pervade a neighborhood, which can itself amplify criminal
deviance (Stark, 1987) and can adversely affect economic conditions of a local
community furthering more criminal deviance and fear (Reiss, 1986). "Maybe nothing
could be done or nothing would be done. But neighbourhoods might find it intolerable
that nothing happened." (Christie, 1977, p. 10)
A frequently mentioned aspect of community's needs is the need for the feeling of safety.
"Safety is the first consideration of the community. All decisions regarding the hurts that
are crimes should be based on this consideration." (Mackey, 1990, p. 60)
The first notion or premise of this model ... is that responses to sexually aggressive
behaviors by juveniles will be based on individual and community safety. Everyone has
the right to feel and be safe from sexual assault in their families and communities.
(Knopp, 1992, p. 4)
Communities not only have a need for concrete responses, they have an affirmative
responsibility for providing them.
To the extent that we acquiesce to continuing escalation of social controls, agents of the
state, we reduce correspondingly the prospects for the kind of safety that cannot be
achieved through force. (Harris, 1991, p. 92)
This involves four concrete actions:
1) act immediately to protect the victim and others from further harm by the offender, 2)
act immediately to protect the offender from vengeance, 3) set in motion the healing
process of restorative justice (which means providing the resources, paying the bill), and
4) creating those conditions most favorable to the complete restoration of both the victim
and the offender. (Criminal Justice Committee, 1989)
"Citizens and communities victimized by physical, emotional, or economic harm are
justifiably angry and require a means to address the injustice that that anger represents.
"Communities need a mechanism to recover from the psychological injury caused to
them by criminal conflict—a mechanism involving "rituals of forgiveness and release
from anger" (Gehm 1992, p. 548). "Even if some past injustices never can be
compensated for adequately, it can restore a sense of fairness to feel that everyone is
trying." (Harris, 1989, p. 40)
The ultimate aim should be to find a means by which institutional control and the
imposition of official discipline can give way to community control, self-regulation and
self-discipline—while still guaranteeing individual rights [Community empowerment]
involves encouraging communities to take responsibility for their own regulation. It
makes communities accountable—and appears to strengthen them in the process (Moore,
1994, pp. 4-5).
Part of the solution to peacemaking is the process itself. Empowering local communities
to respond to their own conflicts meets the needs of the community to repair the
psychological injury and anger of crime, and helps to nurture the sense of community,
building responsible stewardship.
Like the primary individual victim, the community has a need to bring meaning to crime,
and to develop an emotional understanding of the conflict. This requires a personalized
understanding, rather than "an explanation of criminals as non-humans." (Christie, 1977,
p. 8)
In crimes such as sex offenses, for example, the tension for the community is to
personalize the hurts of the victim and the needs and responsibilities of the offender
without over-individualizing the crime issue. To over-individualize in family violence is
to leave unchallenged the role of sexism and the tolerance of violence in our society. To
over-individualize other crimes may leave unchallenged the roles of racism and classism.
(Mackey, 1990, p. 42)
The community needs to understand the human dimensions involved in criminal conflict.
It needs to understand that most criminal harms are committed between persons known to
each other, members of the local community. The community needs an understanding of
crime as interpersonal conflicts, and as an opportunity to reconcile victim with offender,
and offender with the community.
Through reconciliation, we must identify what is best for everyone for his or her own
sake, not for the sake of the community or society. The goal of reconciliation is quite
simple; to bring together the estranged elements of the community and restore the
original trust among these elements. Among those to be reconciled are the transgressor,
the victim, and, most importantly, the community at large. If the community itself does
not reestablish trust with the transgressors, they remain isolated and alienated from the
community.... Reconciliation repairs the damage of conflict. It restores harmony and
balance to the community. (Cordella, 1991, p. 42)
The community's injury is to shalom—right relationships—among members of the
community. The injury in against peace, and requires a local effort to restore harmony in
the community. There is a desperate need within our communities for "socially
integrative interventions" (Messmer & Otto, 1992, p. 1)
The overarching goal we must hold out for is shalom. That is, we must seek the reestablishment of right relationships wherever relationships have been broken by the
criminal act. This is what justice demands... (Northey, 1992, p. 33)
A strategy of empowerment enables local communities to meet their need for peace.
Empowerment of the victim allows them to meet their needs for control and order.
Empowering the offender allows them to accept responsibility and become responsible.
This much empowerment creates the potential for dynamic and innovative solutions to
problems producing crime, including the social norms themselves.
Instead of compelling compliance with norms, the norms themselves are open to
discussion: It is necessary to ask which ethical measures restorative justice uses to
differentiate its goals, which standards of normalcy it follows, and how far these
standards are generally binding. To the extent that clients are free to speak for themselves
and to the extent that one listens to them, opportunities are increased for all participants
to understand each other in a contingent world—not only with reference to others but also
with reference to oneself. Norm compliance presupposes freedom, that is, in each case
the freedom to disagree. Correspondingly, normative morals must also be applied to the
process of achieving consensus. Useful demarcations between compliant and deviant
behavior would become possible. (Messmer & Otto, 1992, p. 12)
Both the offender and the community share responsibility for responding to criminal
injuries. "Transformative justice recognized that both the offender and society have
played some role in creating the problem, and both share responsibility for providing
restitution." (Morris, 1994, p. 5)If the offenders is to be held accountable, and expected to
behave responsibly, the community too must shoulder its responsibility to both the injury
and its healing.
[M]any of the needs which the victim and the community have as a result of crime are
beyond the
means of offenders to set right. And offenders have needs as well. This is society's
responsibility: to attend to the needs to which individuals alone cannot attend. Certain
obligations on the part of the community are thus also generated by crime. (Zehr 1990, p.
199)
Holding the offender accountable to the victim, and accepting responsibility for
reparation offenders cannot meet are affirmative responsibilities of the local community.
If one is to expect active responsibility on the part of the offender . . .then one must be
able to balance this with acceptance of responsibility on the part of the community to
support such efforts, for the causes of crime lie as much in social arrangements as in the
individual, and the latter, in the case of crime, is often the least able and resourceful
person to take on a programme of reform single-handedly. In helping the wayward
among them, communities would also be improving themselves to everybody's benefit.
(Marshall, 1992, p. 25)
"...[T]ransformative justice deals fully with the deep need of offenders both to assume
responsibility for their crime, but also to find healing for its causes, while accepting
social controls to prevent a recurrence. Similarly, society's needs for both healing and
security are maximized through the empowerment and cooperative building processes of
transformative justice." (Morris, 1994, p. 5)
The community not only has a need for firm integrative interventions to crime, conflicts
are a important asset for communities (Prothrow-Stith, 1991). Every conflict represents
an opportunity for reaffirming the importance of every member of the community to its
overall health. Each is an opportunity to demonstrate helpful problem solving approaches
to conflict and reaffirm the right of every member to be free of violence and secure in
their possessions. Every one who injures another should accept responsibility to repair
those injuries. This should be the public lesson of a restorative response to crime.
The public educative function of the restorative justice process was perhaps the least
often explicitly mentioned role for the community in the paradigm thus far. Most authors
discuss the importance of the broader paradigm, proposing restorative approaches to all
levels of conflict. The responsibility for implementing peaceful problem-solving
responses to general conflicts is also seen as the community's. Restorative justice
advocates have always recognized the need to inspire non-punitive approaches to all
conflicts in society, "to help victims and their families to realize both the futility and the
counter-productiveness of retribution" (Mackey, 1981, p. 52). One goal of Restorative
Justice is community outreach, including "a community education component that
emphasizes an alternative paradigm of justice, for the purposes of literacy in dispute
resolution and peacemaking, grassroots ownership of local dispute resolution programs,
volunteer recruitment, and the like" (Mika, p. 565, 1992).
One of the most consistently mentioned community need in the Restorative Justice
literature is for a mechanism that can address and alter the existing social structures that
are criminogenic, the root causes of criminal conflict. While the need for primary
prevention efforts is widely discussed, it is also the least implemented in practice. Yet,
system reform is essentially and fundamentally imbedded within the Restorative Justice
paradigm. "For punishment to seem fair, outcome and process need to relate to the
original wrong. However, the societal context must also be viewed as fair, and this raises
larger questions of social, economic, and political justice" (Zehr 1990, p. 210).
The dimension, character, and sources of conflict suggest that empowerment strategies,
including reconciliation and restitution, must move well beyond facilitating palatable
accommodations between individuals. The structural dimensions of local conflict point to
a more ambitious justice agenda. (Mika, 1992, p. 567)
Primary prevention efforts are non-existent in the punitive approach to crime. We have a
long history of individualizing crime and the response to it. "Most Americans do not have
a strong sense of consequence. They do not view the problem of crime in its social
context, nor do they examine the socio-economic genesis of most so-called criminal
activity" (Mackey, 1981, p. 51). There must be some feedback mechanism between the
repeated responses to individual conflicts to recognize the larger patterns between these
conflicts and the social structures which produce them.
There are many community programs and educational materials that teach strategies that
are designed to prevent victimization. The Safer Society Program advocates teaching
children and women that they own and control their own bodies and teaching men that
they have the obligation to respect this. Though we must change laws and social policies
to do this, there are excellent programs that are teaching these values to males and female
children. (Knopp, 1991, p. 190)
In the long term the safety of the community depends on economic and distributive
justice as the best crime prevention policy. This includes full employment, quality
education, community-based family support programs, attention to victims, and intensive
rehabilitation programs for offenders. (Mackey, 1994)
[The community is responsible for establishing peace.] Peace is a cooperative dynamic
that is fostered from within a community. It requires a community's commitment to
respect the rights of its members and to help resolve conflicts among them. This includes
addressing the underlying factors that may contribute to conflicts, such as economic,
social and racial injustice, as well as the erosion of common values. (Van Ness, 1989, p.
24)
But the community also must examine its responsibility for the behaviors—must uncover
the societal roots of sexual violence, understand them, and find ways to reduce the
potential for such violence to occur." (Knopp, 1991, p. 192)
[T]he very idea of a restorative model reflects a deep interest not only in repairing harm
done in the past, but also in striving toward a better future, a future in which people are
living "in right relationship' with one another materially, socially, and spiritually, as
Howard Zehr puts it in this paper. That future emphasis requires a commitment to making
serious inquiry into the factors that contribute to crime, conflict, and injustice and to
acting to alleviate or eliminate them. (Harris, 1989, p. 33)
A feminist orientation leads to greater awareness of the role and responsibility of society,
not just the individual, in development of conflict. This suggests that individuals, groups,
and societies need to accept greater responsibility for preventing and reducing those
conditions, values, and structures that produce and support violence and strife." (Harris,
1991, p. 93)
Local communities have a number of needs that arise from criminal conflict. This paper
has identified five general needs of local communities: 1) for a sense of justice, 2) for
community empowerment in conflict resolution, 3) for re-establishing peaceful
relationships between conflicting individuals and their important social relationships and
reintegrating both victim and offender into a loving community, 4) a sense of safety and
hopefulness, and 5) concrete actions to prevent the reoccurrence of similar conflicts.
The responsibilities of local communities identified were 1) to act immediately to protect
victim and offender, 2) hold offenders accountable and insist on active involvement of
interested parties in the resolution process, 3) to provide the local resources for victim
and offender to seek their healing, 4) to provide public education and serve as a model for
peaceful conflict resolution processes, and 5) seek the systematic sources of types of
recurring conflicts and encourage their amelioration at their etiological source.
But does society—our country as a whole—also not have a stake in the local restorative
justice process? It could be argued that society is an indirect victim and/or a vicarious
victim of local crime as a result of the fear and apprehension spread via modern media to
the whole of society. The existing literature suggests that, as society is an indirect victim,
it is responsible to participate in only a non-direct way, e.g., supporting and encouraging
the healing process at the local level. "Statewide funding is the key to good
victim/survivor services, and it should be guaranteed by earmarked appropriations from
legislative bodies." (Knopp, 1991, p. 190)Perhaps wider government need only become
involved when the local process is not functioning, or requires resources unavailable at
the local level.
Completing the Restorative Justice Paradigm
While there are no existing models of a full restorative justice system in operation, there
are a number of promising approaches. Among these are the New Zealand model of
Family Group Conferences (Morris, Maxwell & Robertson, 1993, McElrea, 1994), and
the Australian model of "Community Action Conferences" (Moore, 1994).
Community Action Conferences "involve the perpetrator(s) of an offence and the
victim(s) of that offence, together with the families and friends of victims and offenders.
Each conference is coordinated by a police officer, whose role is to encourage
participants to reach some collective agreement about how best to minimize the ongoing
harm resulting from the offending behavior. Agreements usually involve some
arrangements for appropriate restitution and reparation. ... The program has several
aims,One is to give victims of offending behavior an opportunity to participate in the
official response to that behavior. Another aim is to provide offenders with an
opportunity to understand the consequences of their actions. Yet another is to involve the
broader community of people who have been adversely affected by those actions. In
practice, these three aims cannot be separated from one another. Involving a broader
community of people encourages and supports the involvement of victims and both of
these factors help young offenders to understand how far reaching the ramifications of
their actions have been. (Moore, 1994, p. 5)
This approach to Restorative Justice practice involves local control of the process. The
response by the community is inclusive of all primary and secondary victims and the
personal communities of victims and offenders. The local police are responsible to
coordinate the process, but they do not control the outcome. Those community members
with a direct stake in the outcome are empowered to provide concrete and socially
relevant reparations and ameliorative solutions. The affirmation and acceptance of the
victim and offender in their personal communities and the local community as a whole is
accomplished. The community is restored to a sense of justice and peace, knowing that
they themselves "did something about it." Local community resources are available to
meet the needs of the victim and the offender, and a model of peaceful conflict
resolutions is played out in a public forum over and over for the whole community to
learn from.
It does not separate individuals from their community of care, rationality from the
emotions, or justice from needs. Nor does it rely on the competing assessments of
experts. Rather, where offending behavior has produced an offender and a victim, it gives
the community of people most affected an opportunity to seek some sort of resolution.
They have as good a chance as anyone of achieving a resolution, and deserve an
opportunity to do so. (Moore, 1994, p. 5)
Community Action Conferences of Australia are perhaps the most comprehensive of the
victim-offender mediation approaches to date. This program is the primary response to
moderately serious offenses by juveniles in the country. Less serious injuries, which are
not worth the time and effort to arrange a conference, are referred to existing local
resources, primarily parents, for resolution. Very serious harms by juveniles and criminal
harms by adults are still handled within the larger adversarial criminal justice system,
though efforts to expand the restorative process to these cases is already underway.
Serious injuries by violent individuals require a more elaborate response to fulfill the
community safety needs, and meet the needs of both victims and offenders. And there
remains the astructural bias in this approach. The mechanisms for altering social
structures that lead to violence and providing primary and secondary prevention efforts
remain unelaborated.
To produce a peaceful healing of conflict, the justice seeks to personalize the conflict, the
injury, the responsibility, and the involved parties to engage and transform the powerful
personal emotions experienced by the victim and offender during the crime. This requires
that victim and offender have the opportunity to know one another (if only briefly), in a
balanced, respectful relationship. This type of personal recovery from crime involves
personal effort and commitment from individuals, and produces a process that appears
nearly organic in character. "The outcome of the conference is something that grows out
of the interaction of those diverse interests in a creative way" (McElrea, 1994).
The primary goal of Restorative Justice is the empowerment of victims, offenders, and
communities. Communities first must be empowered to control their own conflicts—
control the apparatus of criminal justice processes. The overwhelming majority of police,
courts, and jails operate at the municipal level of government. The criminal justice
system is really not a separate entity from communities. 12 The move toward community
policing and community level corrections should be encouraged further, to come under
local community control and involve local community citizens more directly. Grass-roots
community self-improvement programs need to be encouraged and strengthened (Sulton,
1990, McCoy, 1994).
The communities need to be empowered to create and nurture the restorative justice
process. The nature of the process involves direct empowerment of victim and offender
too, as they interact and agree on restorative terms. Local communities need to provide a
model for managing personal conflicts throughout the community. Crime prevention and
conflict management strategies need to be geared more toward primary and secondary
prevention, and tertiary prevention efforts need to be personal, integrative and local. The
primary purpose in society's response to wrong-doing needs to include a strong
denunciation of punishment, aggressively favor healing approaches and preventative
efforts intended to minimize criminal injuries.
One of the most consistently mentioned principles of Restorative Justice is that the
process should provide the mechanism to question norms and alter existing social
structures. While the possibility of structural reform is widely discussed, the
programmatic considerations of this possibility is the least developed. How can the
patterns of social maladies uncovered in the restorative justice process lead to larger
social changes? Some of the needs uncovered can be met by the community, such as
parenting education and alternative conflict resolution mechanisms. But how can any
community alter economic conditions and social structures that contribute to crime? The
resources required to alter structural inequities can only be met from larger political
structures. If our democratic political institutions were responsive to the needs of
communities, they would be the source for social justice more broadly. Perhaps, herein
are the considerations needed to address the appropriate role for "government" or
"society" within a Restorative Justice paradigm, but such considerations are beyond the
scope of this paper.
Only if our democratic political institutions support the restorative process and provide
the resources and responsiveness to local community needs can the possibilities of a safe
community be realized. In this way, safer and more just social strategies will flow from a
multi-level and interdependent social-change agenda which advocates acknowledging
and accepting social responsibility.
The perceived need is for a new system of restorative justice based on social and
economic justice and on concern and respect for all victims and victimizers, a new
system based on remedies and restoration rather than on prison punishment and victim
neglect, a new system rooted in the concept of a caring community... [where] power and
equality of all social primary goods—liberty, opportunity, income, wealth, and the bases
of self-respect—are institutionally structured and distributed to all members of the
community and where the spirit of reconciliation prevails. (Knopp, 1991, pp. 183-184)
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NOTES
1 "The roots of the restorative justice paradigm date back to the early 1970s. Social and
political forces coalesced with other efforts: 1)search for informal justice and dispute
resolution processes, 2) increasing scientific skepticism regarding deterrent effect of
punitive system, and 3) rise of victim support movement." (Messmer & Otto, 1992, p.
1).As I view it, Canadian and US Mennonite criminal justice committees and other
religious based criminal justice efforts (Presbyterian, Brethren, Quaker, Council of
Churches, and others), combined with previous practice and research in victimology,
victim restitution and reparation, and mediation processes generally.For a review of this
literature see Wright & Galaway (1988).The coalition—building concepts underlying
Restorative Justice have also attracted feminist criminology, the prison abolition
movement, and critical criminology.See Quinney, & Pepinsky (1991).
2 The assumption that consensual "crimes" should not be treated in the same context with
violence and property offenses is not explicit in any materials reviewed.It does seem to
be implicit in much of the discussion about the conflict nature of crime, especially
Christie (1977) and Zehr (1990).Since Restorative Justice proposes the radical
proposition that punishment should be entirely abandoned, it seems less radical to suggest
the we return to common sense notions of "natural crime"--violations of pity and probity,
as per the Italian criminologist Raffaele Garofalo (1914).
3 There is a tendency for some program advocates to replace Zehr's proclamation with
"crime is an act against another person or the community" (Bazemore & Umbreit, 1994,
p. 9).
4 Zehr (1990) and others often contrast restorative justice to retributive justice.However,
retribution views punishment as a necessary evil, not requiring other justification or
serving any other purpose than the balance tit-for-tat.Our present system follows more
closely the deterrence based classical criminology of Jeremy Bentham—that people will
obey the law for fear of punishment.(Newman, 1978)I prefer to call this deterrence
premised approach the "obedience model", since it's purpose is not justice per se, but
rather crime suppression.
5 Karmen used this classification in a discussion of restitution advocacy, but the scheme
is useful in the broader context of reparative approaches generally.See Karmen (1990, pp.
289-292).
6 The difficulties involved in a system of punishment-in-kind is what led retributivists to
imprisonment, providing a sliding scale of punishment and punishment in amount
commensurate with the social harm (Newman, 1978).
7 The theory of justice, "justice as fairness", proposed by John Rawls (1979) would not
only be consistent with restorative justice, it would seem to lead to similar conclusions
regarding of the priority of the victims' interest in the process.Rawls claims that justice
must be judged from the perspective of the person most disadvantaged in the
circumstances.I believe, in the situation of crime, that would be the victim.
8 Christie (1977, p. 11) encouraged citizen voluntary participation in the influential
article "Conflicts as Property". "...I conceive of a system where nobody was given the
right to take part in conflict solution more than a few times, and then had to wait until all
other community members had had the same experience."
9 I do not mean to imply that domestic violence should not be considered a criminal
conflict.Criminal harms are the providence of the whole community, whether they
involve intimates or strangers.Presumably it is the fear of stranger crime that produces the
public demand for vengeance.
10 Injuries caused by conflict not constituting criminal harms might well define local
community differently, for example, in a school setting involving non-criminal harms, the
local community is the school.
11 Mackey's grid includes the categories of victim, offender, and community by injury,
need, and response.
12 Some advocates, especially Van Ness (1989, p. 20) represent the perspective that the
criminal justice apparatus is government's distinctive role in restorative justice. "In
promoting justice, the government is responsible for preserving order, and the community
is responsible for establishing peace.""...Restorative Justice returns to the ancient view
that there are actually four parties, rather than just two" --victim, offender, community,
and government.Van Ness (1989) may be proposing an interim process leading to the
eventual transformation of the criminal justice system."Crime should be dealt with
through the informal process as much as possible." Also see Van Ness, et al., 1989; Van
Ness, 1990; Crawford, et al., 1990.