The word “restoration” literally means “reverting to the original, i.e. prior-to-the-incident condition”. Is this really possible for all parties affected by a criminal incident, including the victim(s), the offender(s), the community and maybe even the government?
An Overview of Restorative Justice:
Restorative justice believes this to be possible, or at least the efforts to be worth it. This punishment philosophy brings the victim and the offender together to develop a mutually beneficial programme that helps the victim in the recovery process and provides a means of reducing the offender’s risks of re-offending. The notable characteristic is that the starting point of restorative justice is for the offender to take complete responsibility and personal accountability for the wrongdoing and the harm inflicted on the victim and the community; and consequently initiate restitution to the victim. From this point forward, condemnation is focused on the deviant, criminal act and not on the offender.
Restorative justice refers to “an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime.” The ultimate aim of restorative justice is to re-instil the community’s sense of wholeness and safety. Objectivity is ensured in such restorative efforts through the active involvement of community mediation groups, neighbourhood councils, local support groups, and victim-offender conferences mediated by trained professionals. Restorative justice starkly challenges our fundamental understanding of crime and justice.
Restorative justice refers to “an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime.” A popular definition given by Tony Marshall defines “restorative justice” as “a process whereby all parties with a stake in a specific offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future”.
Widely known as “the grandfather of restorative justice,” Howard Zehr began as a practitioner and theorist in restorative justice in the late 1970s at the foundational stage of the field. He has led hundreds of events in more than 25 countries and 35 states, including trainings and consultations on restorative justice, victim-offender conferencing, judicial reform, and other criminal justice matters. His impact has been especially significant in the United States, Brazil, Japan, Jamaica, Northern Ireland, Britain, the Ukraine, and New Zealand. Zehr was an early advocate of making the needs of victims central to the practice of restorative justice. A core theme in his work is respect for the dignity of all peoples.
While New Zealand today, is a country that has reformed its Juvenile Justice System into a family-focused restorative approach, the roots of restorative justice are said to be traced back to the early legal systems of Western Europe, ancient Hebrew justice and precolonial African societies. In India, historically, the village panchayat system of administering justice strongly reflects the principles of restorative justice in practice.
The 7 Guiding Principles of Restorative Justice:
- Crime is an offense against human relationships;
- Victims and the community are central to justice processes;
- The first priority of justice processes is to assist victims;
- The second priority is to restore the community, to the degree possible;
- The offender has personal responsibility to victims and to the community for crimes committed;
- The stakeholders share responsibilities for restorative justice through partnerships for action; and
- The offender will develop improved competency and understanding as a result of the restorative justice experience.
It is believed that this approach to justice administration would benefit the justice system, law enforcement agencies, elected officials, crime victims, service providers, and corrections officials and the immediate social community of the victim(s) and the offender(s).
The 7 Essential Objectives of Restorative Justice:
- Supporting victims: The primary objective of restorative justice is to give victims a voice, encourage them to express their needs, and empower them to participate in the resolution process and offer them assistance all throughout. In 1985, the UN General Assembly adopted a Declaration of Basic Principles on Justice for Victims of Crime and Abuse of Power which stated that “informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims”. A restorative justice process has the potential to be better suited to address many of the victims’ most important needs. In particular, the formal justice process is not designed to allow victims to describe the nature and consequences of the crime, let alone to ask questions of the offender. The restorative justice model can support a process where the victims’ views and interests count, where they can participate and be treated fairly and respectfully and receive restoration and redress. By participating in the decision-making, victims have a say in determining what would be an acceptable outcome for the process and are able to take steps toward closure.
- Repairing the relationships damaged by the crime: This is achieved in part by arriving at a consensus on how best to respond to it. In fact, it is often argued that the focus of the response should not be solely on the criminal incident, but rather on the relationships that it affected or damaged. Strengthening the community can sometimes prevent further harm. A key feature of restorative justice is that the response to criminal behaviour focuses on more than just the offender and the offence. Peacemaking, dispute resolution and rebuilding relationships are viewed as the primary methods for achieving justice and supporting the victim, the offender and for interests of the community. It can also be helpful for identifying underlying causes of crime and developing crime prevention strategies.
- Denouncing criminal behaviour as unacceptable and reaffirming community values: Adjudicating certain behaviours is an objective of the restorative justice process just as it has been a fundamental objective of the criminal justice system for centuries. However, the way in which the behaviour is judged makes a huge difference. Denunciation is achieved in a more flexible manner, taking into account not only the rules, but also the individual circumstances of the offence, the victim and the offender. It is designed to be a positive denunciation within a larger process, rather than being the sole focus of the intervention. What the denunciation looks like and how it takes place during the restorative process varies widely, but it remains an essential part of the process. At times, issues can obviously arise when the values that a given community reaffirms through the restorative justice process are not congruent with those enshrined in existing law.
- Encouraging responsibility taking by all concerned parties, particularly by offenders: The restorative process is meant to enable offenders to assume responsibility for their behaviour and its consequences. A restorative process moves from merely assessing legal guilt to attempting to determine responsibility for a conflict and it consequences. Active acknowledgment and acceptance of personal responsibility for the crime and its consequences, rather than a mere passive one imposed by others, is what is advocated. Others who had a role to play in the offence or the circumstances that led to it are also encouraged to assume responsibility for their part in the incident. This has the effect of broadening out the process beyond the specific incident, victim and offender. The manner in which this responsibility will lead to action, in particular apologies and restoration, is left to be determined through the process itself and not through the automatic application of some general legal rules. At its best, the process may lead the offender not only to assume responsibility but also to experience a cognitive and emotional transformation and improve his or her relationship with the community and, depending upon the particular circumstance, with the victim and the victim’s family as well.
- Identifying restorative, future-oriented crime management methods: Rather than emphasizing the rules that have been broken and the punishment that should be imposed, restorative approaches tend to focus primarily on the persons who have been harmed. A restorative justice process does not necessarily rule out all forms of punishment (e.g. fine, incarceration, probation). The focus is consciously shifted on the possible restorative outcome by providing the offender with an opportunity to make meaningful reparation. Restorative justice is relationship based and strives for outcomes that satisfy a wide group of stakeholders.
- Reducing recidivism by encouraging change in individual offenders and facilitating their reintegration into the community: The past behaviour of individuals and its consequences are clearly a central preoccupation of the restorative process, but so is the offender’s future behaviour. Transforming or “reforming” the offender through the restorative process is a legitimate objective of the process with the objective of preventing recidivism. The insistence that offenders accept responsibility for the consequences of their actions and understand the harm inflicted is expected to be the starting point of improving the offenders’ future behaviour. It is understood that the community and statutory agencies have a role to play in this process.
- Identifying factors that lead to the crime and informing concerned authorities for devising crime reduction strategy: The restorative process calls for an open frank discussion on the background of the offence. This is encouraged with the idea of explaining the behaviour without justifying the same. The risks and needs of the offender and subsequently of the community to which the offender belongs is identified and can then be effectively addressed.
Note: This article is based on what we have been reading about the topic from various sources, including but not limited to the UN Handbook on Restorative Justice Programmes, and may be updated with increased understanding and learning.