By Taylor Kilpatrick, Student-Attorney at the International Human Rights Clinic of the George Washington University Law School
What is Restorative Justice?
Restorative Justice has been employed on different scales and in different contexts throughout the world, as a form of conflict resolution that steps outside of the often-inflexible courtroom system. It is essentially, “an approach in which the victim/survivor and offender, and in some cases other persons affected by a crime, ‘participate actively together in the resolution of matters arising from the crime, generally with the help of a facilitator.’” It emphasizes repairing harm and “restoring harmony as much as possible between offender, victim, survivor and society.”
Restorative Justice is also sometimes referred to as “communitarian justice,” “positive justice,” “relational justice,” “reparative justice,” or “community justice.” It is an umbrella term for a range of specific approaches. These include, but are not limited to, victim-offender mediation, community and family conferencing, circle sentencing, specialized juvenile programs, and indigenous forums. Regardless of the specific approach, this alternative justice system is based on the foundational principles that criminal justice should focus on healing the harm caused, and “the people most affected by the crime should be able to participate in its resolution.” These two basic principles underscore and guide all Restorative Justice programs. Additionally, there are several core elements that are consistent across all Restorative Justice systems. I provide an overview and examples of each below.
Core Elements of Restorative Justice
The core elements of Restorative Justice are (1) inclusion of all parties to the dispute, (2) community-centeredness, (3) engaging and facing the person(s) on the other side of the conflict, and (4), genuinely repairing the harm generated. These elements intersect throughout the process, and may be emphasized to varying degrees depending on the specific program.
- Inclusive of All Parties
First, Restorative Justice programs must be inclusive of all parties. Most directly, this means the victim, the perpetrator, and a facilitator. (A “facilitator” is “a person whose role is to facilitate, in a fair and impartial manner, the participation of the parties in a restorative process.”) These are the essential parties, without whom, the program cannot work. The goal of inclusion, however, is to open the door to all people affected by the crime and encourage their voluntary participation in the resolution. For example, in southern India, a non-profit called the Enfold Proactive Health Trust (Enfold India) has created a Restorative Justice model that continuously and safely engages all affected parties. First, the parties have a preparatory meeting to explain the process and address initial concerns. Next, the facilitator confirms informed consent from all participants. Facilitators then work with individual parties to identify their needs, in multiple subsequent preparatory meetings. Next, the facilitator does a “safety and risk assessment” to ensure security in advance of the official dialogue. All parties then engage in the official guided restorative dialogue. It concludes when the parties agree on a ‘Restorative Agreement’ that repairs the harm based on their discussion. Finally, the facilitator conducts follow-ups to ensure continued support and compliance. This is a fairly standard model for non-profit Restorative Justice programs.
The second element, community-centeredness, is directly related to the first. By creating an inclusive space, Restorative Justice aims to bring “society” in as an additional party. Rather than the “two-way relationship” between the perpetrator and the state in a court setting, Restorative Justice employs a “three-way relationship” between victim, perpetrator, and society. It may incorporate family, peers, co-workers, schools, or anyone else who serves a role in the harm or its resolution. The goal is to repair the harmony of the community. An example of a Restorative program with strong community ties is the Rwandan Gacaca court. The government created the program in the wake of the Rwandan Genocide, to tackle the volume of cases and heal the country. But the model has deep roots in local tribal culture. The courts are more akin to talking circles, with participation of the parties involved, as well as community representatives. Though not a perfect system, many credit Gacaca courts with helping rebuild society after such violent division.
- Engage and Face the Other Side
Third, and also deeply intertwined, is engaging and facing the other side. Restorative Justice largely hinges on the idea that confronting your perpetrator or your victim serves an essential role in repairing the harm created. It opens lines of communication that do not exist in the traditional justice system. For this tenant to be effective, however, it is vital that the facilitator create a safe space. For the victim, facing the other side facilitates healing through storytelling and confrontation in a safe space. (In some models this takes the form of “truth telling” or “victim impact statements.”) Forgiving the perpetrator(s) is often a goal for victims, so they can feel a sense of closure. Victims also have the opportunity to ask questions of “why” directly to their perpetrators, and actually get a response. One survivor who participated in a Restorative Justice program for sexual violence cases in the United Kingdom said, “[I] hadn’t had the opportunity to tell [my attacker] how he’d made me feel.” And after she subsequently participated in a restorative meeting, she said, “He heard it from me that day, what he’d done to me, not from someone else saying how I might feel… I got complete closure from that meeting.” For the perpetrator, facing the other side forces them to confront and take responsibility for the harms caused by their offense, but it also gives them the chance to prove their “positive capacity and qualities” and “tackle guilt feelings in a positive way.” This process helps them see, hear, and better understand the implications of their actions
- Genuinely Repair Harm
Finally, Restorative Justice centrally focuses on genuinely repairing the harm to the victim and the community. Harm can take the form of “material, emotional, social, relational, [or] physical” damage caused by, or surrounding, the event. The options for potential resolutions are “broader and more flexible” than the rigid remedies available in a court room setting. The victim has a central voice in defining what their “harm” is and what a genuine remedy looks like for them. This allows the parties to tailor outcomes to the situation and take a more holistic approach to evaluating what will actually repair the harms. The most common outcomes include a formal apology, specialized community service, rehabilitation, financial reparations, and sometimes punishment. Restorative Justice intentionally steers away from traditional “retributive justice,” which focuses on punishing perpetrators and hinges on state enforcement. The key distinction is that Restorative Justice focuses on forward-looking, reparative outcomes. In addition to innovating the remedies, the victim and the community also set the terms of monitoring compliance and reintegration of the perpetrator. This process gives the victim a sense of ownership over their situation and regained autonomy in their life.
Ultimately, Restorative Justice offers an alternative path to conflict resolution in situations where the traditional judicial system falls short. There are innumerable specific approaches within the Restorative Justice space, but these core elements underscore them all.
- Center for Justice and Reconciliation, What is Restorative Justice?, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-1-what-is-restorative-justice/#sthash.L68O2C7h.r18BPsmM.dpbs.
- Enfold Proactive Health Trust, http://enfoldindia.org/.
- Gerd Hankel, Gacaca Courts, Max Planck Encyclopedia of Public International Law, p. 1.
- Interview with Laurie Kohn, Zoom, Nov. 5, 2020.
- Laurie S. Kohn, #MeToo, Wrongs Against Women, and Restorative Justice, Kansas Journal of Law & Public Policy, pg. 577 (2019).
- Clare McGlynn et. al., `I Just Wanted Him to Hear Me’: Sexual Violence and the Possibilities of Restorative Justice, 39 L. & Soc. 213, 218 (2012).
- UNICEF: Tool Kit of Diversion and Alternatives to Detention, https://www.unicef.org/tdad/index_56040.html.
- United Nations ECOSOC Resolution 2002/12, Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, https://www.un.org/en/ecosoc/docs/2002/resolution%202002-12.pdf.
- United Nations Office on Drugs and Crime, Handbook on Restorative Justice Programmes, 2006, https://www.unodc.org/pdf/criminal_justice/Handbook_on_Restorative_Justice_Programmes.pdf.
- What Would a World Without Prisons Look Like?, New York Times, https://www.nytimes.com/2020/03/06/arts/design/prison-architecture.html.