Restorative Justice

The restorative justice approach draws from indigenous and traditional justice practices which are still being used throughout the world, such as circle sentencing (see below) and family clan councils.

Meetings with victims, family, the community, and others impacted by the crime, are usually formal, well-planned exchanges led or moderated by trained professionals. These exchanges provide an opportunity for the offender to take responsibility, offer amends, and make a commitment to refrain from committing further harm. In some cases, restorative justice programs also offer offenders support with reintegration and rehabilitation. Participation in restorative justice is voluntary for both offenders and victims.

Program Structure

There is a considerable variation in the structure and scope of restorative justice. Programs may be integrated into the formal justice system, serve as a complementary feature, or operate independently. When restorative justice is a component of the traditional justice system, offenders may be eligible for a reduction in sentencing. Any evidence revealed during the restorative justice process cannot be used in court if the case goes to court.

Some programs are formal and very structured, others are informal and more flexible; some are made available for a wide range of criminal cases, others are limited to nonviolent or juvenile offenses. Implementation of restorative justice also varies country to country.

Victim-offender Mediation (Conciliation) is a process in which the victim and offender meet in the presence of a trained neutral party in order to discuss the crime committed. It can take place at any point in the criminal justice cycle, from pre-charge, pretrial, pre-sentence, after sentencing, or upon release as part of a reintegration program. In some jurisdictions, the outcome of the mediation can inform sentencing recommendations.

The mediator prioritizes the needs and safety of those involved and addresses the sensitive dynamics between the perpetrator and victim. To prepare for the conciliation, the mediator will meet several times with each party separately to confirm basic facts. The offender must acknowledge responsibility and victim compensation may be a component of the conciliation process.

Restorative Conferencing is similar to conciliation but includes the participation of others impacted by the crime. It may involve community members, family members or friends as well as police or other professionals like social workers. Restorative conferences may be offered as an alternative to criminal charges and the process is monitored by the referring entity, for example a school administrator. While practices vary, conferences are usually formal structured meetings between the victim, perpetrator, families, and friends. The focus is on the victim and how the parties can address their needs. For example, a restorative conference can be held if a student is getting into fights at school. In addition to the victim and offender, their families and school officials attend. The victim is given an opportunity to share their feelings on how the fight impacted them. The offender can decide to make amends through an apology, restitution, and community service.

Circles have their origins in indigenous practices, many of which are still in use today. Circles are convened in a wide variety of contexts: some are community-based and others involve law enforcement; some are limited to sentencing while others serve as a forum for adjudicating the dispute. Restorative justice circles have been implemented in courts with the judge presiding over a sentencing hearing during which the community offers recommendations. The usual format has participants sitting in a circle; one person speaks followed by the person seated next to them, until everyone has spoken. The speaker may hold an object when speaking (for example, a “talking stick”) to signify that they have the floor and should not be interrupted. The circle may be moderated with questions directed to participants or it can be more free flowing in structure and content.

Cambodia

In Cambodia, restorative justice was used as a component of the transitional justice process implemented to address the atrocities committed by the Khmer Rouge from 1975-1979. The Extraordinary Chambers in the Courts of Cambodia was established in 2007 to adjudicate allegations against higher level alleged perpetrators, including senior members of the regime. The court included both national and international staff, judges, laws, and procedures. There was a strong retributive purpose to convening the trials and, though few convictions resulted, some perpetrators were sentenced to long prison terms. However, the tribunal also incorporated restorative justice principles. For example, survivors of the genocide played an active role in the proceedings and the court was empowered to award moral reparations, including statements of apology. Survivors were made civil parties to the proceedings and provided testimony about the scale of atrocities, suffering, and the impact on their lives and the lives of their families and communities.

Europe

Almost every member state of the European Union has integrated some form of restorative justice. The European Forum for Restorative Justice is a resource for justice systems and practitioners. It conducts research in the field of restorative justice and offers policy and practice guidelines to support the development of high-quality restorative justice services for criminal justice, family matters, school proceedings, and community needs. EFRJ policy work has included contributions to the development of the Council of Europe’s recommendations on implementing restorative justice in criminal matters.

Ireland

Ireland has well-established restorative justice programs including for youth offenders. The presiding judge can issue an order to Probation Services to organize a Family Conference. The conference is facilitated by a trained officer and brings together the victim, offender, and the offender’s family to discuss how the offender can take responsibility for their crime and make amends.

New Zealand

The New Zealand youth-based restorative justice is one of the most comprehensive and well-known programs in the world. In 1989 New Zealand passed the Children’s and Young People’s Well-Being Act, which limited the ability of police to arrest young offenders and prioritized the use of restorative justice practices, specifically the Family Group Conference. The Family Group Conference is an informal and facilitated meeting between the victim and offender and includes the participation of family members and community leaders. Offenders are screened for eligibility, post-conviction (by trial or guilty plea) but pre-sentence. Before sentencing, participating offenders take responsibility for their conduct, apologize to the victim, and develop a plan to make amends and avoid reoffending. Restorative justice services are provided by community-based groups, financed by the Ministry of Justice, and offer Māori facilitators when appropriate. The restorative justice facilitator sends a report to the court and the judge may take it into consideration during the sentencing.

South Africa

As is the case in many African countries, South Africa embraces Ubuntu, the concept of a common humanity in which people, whether related by blood or not, are each other’s keepers with responsibilities to one another. This philosophy is consistent with restorative justice values and the belief that crime is a violation of community relationships and responsibilities. The post-Apartheid Truth and Reconciliation process involved both victims and perpetrators in the investigation of human rights abuses. Amnesty was granted to offenders who acknowledged their responsibility. There are community-based NGOs in many parts of South Africa that deliver restorative justice programs. RESTORE runs initiatives for high-risk youth incarcerated at Pollsmoor Correctional Centre. The program takes a trauma-informed approach that acknowledges the offenders’ personal circumstances (often extreme poverty and neighborhood violence) while also promoting sensitivity to the victim’s experiences and repentance.

United States

Many states in the US have enacted restorative justice legislation. In some states restorative justice has been integrated into the formal juvenile justice system. The state of Nebraska documented a 15% lower recidivism rate for youth that participated in its restorative justice program. The Restorative Justice Project in Oakland, California focuses on young offenders from under-represented communities who have committed high-level misdemeanors or felonies. The project takes a unique approach. It encourages prosecutors to divert cases before charges are filed while at the same time reaching out to and supporting crime victims. Community-based organizations are trained to facilitate restorative justice interventions tailored to the needs of individual victims. The Oakland project developed a “restorative justice tool kit” for use by other implementers in the United States.