Friday, July 24, 2020


485. Restorative justice

Restorative justice (RJ) is contrasted with criminal justice (CJ), in that while CJ is oriented mostly towards protection of society, in incarceration, and retribution, RJ is oriented at rehabilitation of the perpetrator, reitroduction into society, and repair, restoration on the part of the victim. The focus of RJ is not to respond to harm with harm. Since offenses are often embedded in communities, RJ can also help to restore community relations, and there may be other participants in the process than offender and victim. The cause of offense often lies in  faulty community relations, and the community can benefit from a good restoration.   

RJ is said to hark back to the times before court justice, and still prevails in indigenous societies. That, however, is a bit of a myth (Daly 2001). It is, however, indeed less a matter between offender and the state than between offender and victim. Offender and victim sorted things out by themselves, or with a mediator, rather than, or complementary to, the crime being judged in a court of law. That is an important feature of RJ: discussion between offender and victim, mostly under the guidance of a mediator. However, some confrontation between offender and victim is already part of the common practice of CJ, although not in the form of discussion between them but merely visual contact and a contribution or response to judgement by the victim. Present CJ also is oriented at re-introduction of  the offender to society.

The meeting between offender, victim and community has no fixed scenario. It varies with the case and personal conditions. A key feature of a meeting is that it is voluntary. That requires some trust. If the penalty for the offender has been established before a meeting, this may promote the trust that is needed. Involvement of a community may take the form of a conference. Not all communities are equally able to do this. Punishment may take the form of community services. 

RJ by itself may not eliminate all possible power distance between offender and victim. A mediator may control this, but the scrutiny and intervention of a judge may be needed.  

The aim is for the offender to understand the harm inflicted, and his motivation for it, and to develop empathy and gain the insight and motivation to better himself, facilitating rehabilitation. The aim for the victim is to mend the damage, not just material but psychological, reducing stress, soothe any impulse at violent revenge, and perhaps achieve forgiveness.

The advantages of RJ are primarily psychological, but there are also obvious economic and societal advantages of RJ: fewer expensive court sessions, less delay, hopefully less recidivism (repeat offending), and lower costs of prisons. However, it does involve cost in the form of time of offenders, victims and mediators, training, oversight to prevent power imbalances and unjust outcomes. However, the benefit of RJ is not so much extrinsic, in achieving such goals, but intrinsic, in improving the quality of the relationship and of society.

The empirical evidence is mixed. It works differently for different people. Overall, recidivism declines, more for crimes with personal harm than for property crimes, and Post Traumatic Stress Syndrome (PTSS) has declined, according to a survey study by Sherman & Stang (2007) that compares many cases of RJ and CJ.    

Daly (2001) conducted a study of 170 young offenders in 1998 and 1999, and reports that young offenders are more prone to promote their rehabilitation than restauration of the victim.

She also found that establishment of guilt is necessary to set the communication between offender and victim going, and that may include the judgement of a judge, unless the offender admits to the offense. Offender responsibility has to be established dispassionately. ‘Censure and reparation need to occur before the offender can re-integrate’. This indicates that RJ and CJ are often combined. RJ does not replace CJ. It is also used in preparation of a court session, or in following up on its judgement. 

References:
Kathleen Daly, 2001, Restaurative Justice: The true story, paper presented to the Scottish Criminality Conference.
Lawrence W. Sherman & Heather Strang, 2007, Restaurative Justice: the evidence, Esmée Fairburn Foundation.
The British Home Office,1999, Restorative justice: An overview


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