Carolyn Boyes-Watson

Redefining Justice

Carolyn Boyes-Watson is Director of Suffolk University’s Center for Restorative Justice and Associate Professor of Sociology at Suffolk University. Professor Boyes-Watson has been on the faculty since 1993. Boyes-Watson has published in the area of restorative justice, criminal justice, technology and social control and drug policy. She is currently Vice President of the Board of Directors of the Massachusetts Correctional Legal Services, the prisoners’ rights organization of Massachusetts. Her current research interests include restorative justice and criminal justice policy and she teaches in the areas of criminal justice, juvenile justice and restorative justice. She was interviewed by the Center's Patti Marxsen as part of the Restorative Justice Seminars in the spring of 2003. Her most recent book is Peacemaking Circles & Urban Youth: Bringing Justice Home (Living Justice Press, 2008).

: :

What does restorative justice mean and how is it different from how we traditionally do justice in our culture?

Howard Zehr makes a distinction between a restorative approach to crime and what he once called the retributive approach, but now prefers to call the traditional approach. In the traditional system, the justice focuses on three key questions: What law was violated? Who did it? and What punishment do they deserve? Restorative justice focuses on three entirely different questions: What or who was harmed? What is needed to repair the harm? Whose role and responsibility is it to do this repair? As you can see, the traditional system is very much focused on the person who committed the harm so it’s offender-focused and justice is primarily conceived of in terms of just punishment. A restorative response, by contrast, is victim-centered and looks at how “victims,” very broadly defined, are affected and can be healed.

Another way of articulating what restorative justice means has been provided by Dan Van Ness, another key thinker in this field. He talks about three fundamental principles of restorative justice. The first principle is that justice requires that we work to restore those who have been injured by repairing the harm to victims, communities, and offenders. His second principal is sort of a process idea which states that those most directly affected and involved in the incident — the stakeholders — should have the opportunity to participate as much as possible. This leads to his third core principle which is that we need to redefine the roles of government and community in order to shift toward restorative justice. Van Ness would suggest that we need to give more responsibility to communities, victims, and offenders in the justice process and redefine the role of criminal justice professionals and the role of government.

In this “broad definition” of victims, would you include the offender as well as the person who was the victim of the crime?

Yes, exactly. Restorative language would typically use the word “harm” instead of “crime.”

So the language really makes a difference here?

Language is very important. Restorative justice focuses attention on who was affected or harmed by an action and that certainly includes the offender, who is obviously affected by what s/he has done along with the offender’s family. The whole understanding of who and what was harmed is very expansive in the restorative perspective. Similarly the issue of responsibility, the question of who is responsible for repairing the harm and what is needed to address the harm, is also seen in very expansive terms encompassing the parties directly involved and also including the wider community-at-large.

Carolyn Boyes-Watson

In a sense, it sounds more difficult than our traditional system which relies on legalities to determine guilt. Would that be a fair assessment?

I don’t know that it’s more difficult. In fact, I tend to think that this way of thinking of harm and responsibility is very commonsensical and very human.

When and where did the modern restorative justice movement begin, and what is the scope of it today?

The modern restorative justice movement is probably 25 to 30 years old and has many different strands that have fed into it. One strand was been the informal justice movement of the 1960s and 1970s which took a serious look at the work of legal anthropologists and tried to implement alternative forms of conflict resolution and dispute settlement; it also looked at how pre-state communities responded to harm without the use of law or lawyers. Another strand was related to victim-offender reconciliation programs which came out of faith-based groups and originated in 1974, I think, in Ontario, Canada.

A separate development in the 1980s was a return to traditional aboriginal practices in a number of places in the world. In New Zealand there was a revival of Maori traditional practices for resolving conflict. Initially, this came about in response to a need for a process that was more culturally sensitive to aboriginal youth in New Zealand’s juvenile justice system. For the Maori, the idea that you would isolate an offender, as we do in the West, and force them to stand before their community alone in their shame was seen as really barbaric. In their culture, an offender’s family would always stand along side the person who was being shamed for having committed harm. So this led to the widespread use of what is called family group conferencing in that country and, by 1989, legislation was passed there to use this method for all juvenile cases, not only those involving aboriginal youth. At the same time, here in North America, the Navajo nation revived their own peace making courts on a parallel track alongside the Western system in the early 1980s. And you also had a similar revival going on in Canada in various predominately first nation communities in the Yukon. Also, a recent study found over 700 restorative conferencing programs for juveniles here in the U.S.

We’re talking about a modern movement and yet the societies and cultures you’re describing are much older than ours and sometimes considered “primitive.” It sounds as if we are having to go back to a much earlier time in order to tap into the wisdom we need today.

Everybody will tell you that restorative justice is not new. The understandings of restorative justice are embedded in many traditions and in many cultures. The difficulty rests in bringing those understandings into our culture, where we have states, law, professionals, and large bureaucratic systems.

How would you define the modern restorative justice movement?

The modern restorative justice movement is a revival of old ideas, and a recognition of ancient wisdom, within the modern context. But this process of figuring out how a restorative justice system will operate in relationship with Western systems of law is probably one of the biggest challenges we face. We have a very highly developed crime-control structure in America, one that many people describe as an industry, that we can’t simply ignore. For this reason, the modern restorative justice movement has really matured into a key reform movement to alter the existing criminal justice system as opposed to developing as an alternative system.

So the modern restorative justice movement works within the existing legal system?

It works in partnership with the system in various ways.

There have been many valuable lessons over the past 20-30 years. For example, one profound problem with the informal justice movement which tried to encourage the idea that there could be alternative processes completely separate from the legal system was that one of the crimes brought forward for mediation was domestic violence. Police referred these cases to a neighborhood justice center for mediation because the whole issue was considered private and, so, it could just go to mediation. There was a lot of justified criticism of these programs, especially by feminists.

Well, things have changed. Part of the modern context involves bringing values of individual equality, children’s rights, and women’s rights into the system. And this has to be combined with ancient ideas from cultures like that of the Maori or Native Americans where ideas of individual equality were often unimportant because male elders were the decision-makers. Modern restorative justice really is a reinvention of traditional restorative justice so in that sense it is entirely new.

Is restorative justice appropriate for all kinds of cases or harms, as you might say?

The shortest response to that is that it’s case-specific, not category or crime-specific. In other words, the appropriateness of restorative justice really depends on whether the individual parties have a desire to come together and go through a restorative process. This can happen around almost any kind of crime.

That said, where most Western justice systems are willing to begin to incorporate a restorative approach is certainly not in the most serious crimes. And noone has suggested that restorative programs would be wise to begin with the most serious crimes. So what you typically see is that restorative justice projects begins with low-level property crime or first offenses for juveniles. As a practical consideration, that’s where everybody feels comfortable with it.

There’s also a learning process involved where practitioners learn more about the complexity of a restorative approach: What is the nature of healing? How do we create a safe environment for both offenders and victims? There’s a whole learning process about how to keep communities from being excessively punitive or bringing a very judgmental mentality to the process. But once a community starts practicing restorative justice, that is, once there is a project taking cases and people, including people in the criminal justice system, becomes more experienced in restorative justice, there is often a drift towards taking on more serious cases.

Do you, personally, see a particular value or opportunity in the restorative justice approach to help juveniles or “at risk” youth develop strong values?

I think that people, of all ages, may be open to transformation at any point in their lives. I profoundly, deeply believe that. This kind of growth is not confined to teenagers. In fact, we often see somebody who has committed a lot of harm and has been in a pattern of committing harm for a long time, and is suddenly pushing 30 and ready for change. The classic, demographic pattern used to be that a young man would “age out” of committing harm by settling down, getting a job, and getting married. But that pattern of “aging out” of crime has broken down, partly because of socio-economic factors and also because what we have now is really a kind of extended young adulthood.

There are people in criminology and restorative justice who are writing about this as a structural problem in our society. They observe that we have disconnected young people from the larger purposes of society, from 12 or 13 all the way up until their late twenties. If you get kicked out of school during your teens, your capacity to hook back into any kind of path towards a legitimate occupation is very limited. Consequently these people, and they are usually young men, fall right into the criminal justice system.

In our society justice tends to become a political issue. Is restorative justice susceptible to a political label of conservative or liberal?

Ironically, I think it’s been labeled as both, which is interesting because I really do think it is both and, therefore, neither. If we think of how a conservative approach to crime emphasizes personal responsibility, issues of individual accountability, and the idea that crime is fundamentally an immoral act that calls for a moral response, well, these ideas are very central to a restorative response. So in that sense, restorative justice is very conservative.

On the other side, a liberal perspective tends to focus on root causes of offending behavior recognizing that anti-social behavior is deeply embedded in the context of society. So they tend to be focused on the hope of rehabilitation of the individual offender as a response to crime. Liberals often feel it is necessary to take the psychological and socio-economic factors into account in order to effectively and fairly address crime. But this, too, is fundamental to the restorative approach because restorative justice holds both the individual and the community responsible for repairing harm and recognizes that offenders have needs and have been victims as well. A restorative approach can handle complexity and recognizes multiple layers of responsibility and accountability.

I think that people come into the restorative justice movement from one or the other perspective. Usually people with a liberal perspective are focused on offenders, are opposed to incarceration, and seek to humanize the offender as a person and they get into restorative justice to support offenders. Then there are people who come into restorative justice from the vantage point of, say, the victims’ rights movement, which is very much aligned with a conservative point of view. These people are saying that we are not doing enough for victims and we are not really holding offenders accountable either. So these folks tend to be more politically conservative.

t sounds like restorative justice brings some balance to both of those perspectives.

Absolutely. Balance is one of the central themes within restorative justice. In fact, the federal adoption of restorative justice for juveniles is called the “balanced and restorative justice model.” The idea is that restorative justice offers a way to balance the needs of victims, offenders, and the community.

Where and how is restorative justice practiced in the United States? Can you provide an example or two of programs that work effectively in striking that balance you just described?

The criminal justice system is often described as having a front end, a middle, and a back end. Restorative justice is used in all stages of the system. At the front end are the police, at the middle are the courts, and at the back end is the penal system and other forms of correctional supervision. Restorative programs at the front end occur at the early stages when somebody commits a crime or takes an action that comes to the attention of the police. At that point, the police often have the legal discretion to make an arrest and charge them, or they can deal with them by warning them or referring them to a program. This is one place where restorative conferencing can occur as an alternative and that’s a form of restorative justice.

In the middle stages in the courts, a judge might refer someone who has pled guilty to a restorative process as an alternative form of sentencing. Let’s say you have a case where somebody has stolen and wrecked a car and somebody in that process says that it would be a good case for restorative justice. They would typically ask the victim(s) if they are interested, and also ask the offender(s) if they are interested. This would mean working with both the offenders’ and the victims’ attorneys. If there is a process in place, and if the offender has fully admitted to guilt, they would be able to refer them to an alternative process for sentencing that is based on restorative principles.

At the back end, restorative justice projects are also used to bring victims and the offender(s) together for dialogue inside of prison for healing, and also in projects that help offenders re-engage with the community on return from prison.

When guilt is disputed, then the traditional legal system is preferable because it focuses on how you prove guilt when someone is denying it. The restorative process becomes relevant when offenders have owned up to what they have done. That’s the starting point.

I am glad that you brought up the issue of sentencing. It’s important for people to understand how restorative justice makes people accountable or responsible. How does this work? Who decides what is a fair way for an offender to take responsibility?

There are numerous models of restorative practices. Again, most of them adhere to Van Ness’s second principle, which is that those who are most directly affected are the ones who should be most directly involved in the process.

So if someone steals my car and I am willing not to press charges, we could have a conference and I could have some voice in what I think that person should do to make it right with me.

Right, although it is possible that formal charges may be filed and a conviction may take place. But remember, a restorative process wouldn’t usually go ahead without the voluntary involvement of the victim and the offender who truly admits responsibility.

Again, restorative justice happens in all parts of the system so there are programs that are implemented once a conviction occurs to determine sentencing. A case might go to a sentencing circle, for example, or a victim-offender mediation although most victim-offender mediation these days are like conferences. Some people generically use the term conferencing to refer to circles or mediation.

What does being accountable mean in terms of restorative justice?

The starting point for accountability is the acknowledgment that you actually committed the act in question; that bare minimum is sufficient to get to the point of the restorative conference. Then, an emotional process begins in which that person who caused harm develops the capacity to acknowledge the impact of their act on someone else, to fully take in the seriousness of the consequences of their act, and to possibly offer a sincere apology and at the same time, be willing to back up that apology with concrete actions or reparations.

Are all of those steps necessary for justice to occur?

You have to have the people who were affected speak about how they were affected and that has to be acknowledged by the offender. It can’t be reduced to a “one size fits all” formula because if your car was stolen and another person’s car was stolen, the apparently identical harm could look very different for each person. In a restorative process, the whole dynamic of the conference is to first talk about what or who was harmed. The offender is hearing that and they are taking it in with their supporters around with them. The intention is that they are not so shamed that they are unable to acknowledge the painful consequences of their actions.

Is the capacity to address the reality of the harm in the presence of supporters part of what it means to be accountable?

Yes, because accountability requires the kind of moral support that allows you to look at the harm that you have done in a context that does not leave you feeling so utterly degraded that you are psychologically unable or unwilling to take active responsibility to make things right. This is John Braithewaite’s distinction between “stigmatizing shaming” and “re-integrative shaming.” Stigmatizing shaming is what we do now when we isolate someone, punish them, and send them to jail. The wall goes up, the head goes down, and they shut you out because you have stigmatized them. Their defense mechanism kicks in; then they are not open to listening to you or really even to acknowledging the harm in all its dimensions.

So it’s not just a matter of being unfeeling, or lacking the capacity to empathize or relate to another person.

No. There are contexts in which empathy can be cultivated and contexts in which it can be minimized. There are all kinds of ways offenders minimize their own exposure to the emotional impact of what they have done to someone. Generally speaking, most of us can’t easily commit harm to people we empathize with. That’s a deep understanding about violence. In order to do violence, you have to create an “other” and distance yourself from what you are doing to that person.

And conversely, the presence of empathy would protect that person from the violent act?

Exactly. In some ways, all restorative processes are about opening people up to the empathy and wisdom of all of these native or indigenous traditions convey a deep understanding of human nature. Consider what it means to be able to look at the bad things you have done in a way that allows you to stand up and say you are sorry and know that you need to do something to make it right. If you are scorned, shamed and isolated, the outcome is that you reject the group that is scorning you and you seek companionship and solace with other people who are similarly scorned. We know a lot about this from studying patterns of juvenile delinquency, gangs, and prisons.

In a restorative conference the issue of accountability is understood to be a process of emotional transformation. It allows the victim the opportunity to speak and express anger; anger is one of the first things that they express because, often at first, they see the offender as a monster. They do not have a whole lot of empathy for the offender. They are very focused on their own anger and on the opportunity to talk about how they have been hurt. As the victim speaks, the offender gets all of that emotion which is often times profoundly moving in terms of understanding the impact of their behavior on others.

The chemistry that goes on inside of that conference is transformative and opens the door to real accountability. Basically, you can’t make someone accountable. You can punish someone without their consent, which is what we do now when we send someone to jail. That’s a form of passive responsibility. In our current system, we tend to think of responsibility as enduring punishment which we simply impose on people who are really very passive. We say, “I’m going to hold you responsible whether you like it or not. You don’t even have to admit guilt. You can still say you didn’t do it and we can hold you responsible through punishment.”

In restorative justice what you are looking for is active responsibility: the active choice to own up to harmful behavior and take on the personal responsibility of accountability. That means, again, acknowledging the impact of what they have done and demonstrating through their actions that they recognize their responsibility to assuage that impact in some way.

It certainly doesn’t sound easy but I wonder if some people might think of it as the easy way out.

Many people who facilitate victim-offender mediation are struck by how difficult it is to sit face-to-face with people you have harmed. In many ways our entire traditional justice system insulates and protects offenders from the consequences of their actions. They rarely see the impact of what they have done and, instead, become very focused on what is being done to them by the justice system. Restorative encounters ask a lot of an offender, not just in terms of the emotional encounter, but also in terms of a deeper understanding about accountability. Basically, the restorative approach asks the offender to get his life together and start behaving differently. Most offenses are not committed in isolation but are part of a pattern of behavior. So, a restorative justice approach is often asking an offender to change.

Because it’s not just about one, isolated incident?

Right, you are not just asked to be accountable for one action, you are asked to be accountable for your life, your future, and the people you are in relationship with including the victim, your own family, and your community. Again, the idea is that the offender will have support but the challenge is to be responsible for changing the way you live your life.

In Minnesota, for example, a young man who was dealing drugs in the community was referred to a community circle sentencing project. They worked with that young man for nine months and finally, the young man said that it was too hard to do what they asked of him. He decided it was easier to take his jail time. So he went off to jail but the circle did not give up on him. They continued to visit him in jail and told him that they would be there when he was ready to change his life, and that is exactly what he did. He got out of jail and went back to the circle and said that he needed to face those things.

Let’s talk a little bit about the victims. You have said elsewhere that victims really don’t want bad things to happen to offenders. What do those statistics look like? Do victims really want to meet with offenders? Does it depend on the crime?

It depends on many things. First of all, we are still at the beginning stages of our understanding of victimization. One of the efforts of the restorative justice process is to focus on the needs of victims and to understand that restorative justice is about meeting the needs of victims, not using victims to help offenders. In other words, it is restorative justice when we go to a victim and ask what they need for themselves completely independent of the offender. Restorative justice is victim-centered, not offender-centered.

This is probably the most significant shift in our thinking, and it’s very hard for us in the West because we are so used to being focused on the offender. But in restorative justice, if you simply do things for the person who was harmed, you are actually more restorative than if you only take action to prosecute or punish the offender. Victims are often wary of the idea of being “used” to help the offender. If they are approached by someone asking if they would like to come to a session because it will be good for the offender, victims ask why they should help someone who has hurt them. Victim participation is most successful in the kind of restorative projects that are very sensitive to the needs of victims so they are actually focusing on victim needs and offering various kinds of support, one of which is the opportunity to meet with the offender, if that is something victims want.

What we find, again and again, depending on the seriousness of the offense, is that victims go through various stages. At one point in their process they may not want to meet with an offender, but a year later they may want that. In fact, there are many projects that have victim-offender mediation in cases of severe violence which take place 15 or 20 years after the offense was committed because that is when both parties are ready to meet. Texas, for example, has an amazing victim-offender dialogue program which comes out of victim services because they understand that victimization changes your life forever. They stay in touch with victims over time and create many opportunities for healing and support for victims.

One of the things that came out of our work with Judith Thompson on Compassion and Social Healing was the idea that for healing to occur, the victims and the perpetrators actually need each other. That ability to forgive, and to forgive oneself, is at the heart of the healing paradigm we’ll be talking more about with Robin Casarjian and Judith Thompson later on in this series. Have you found that to be true?

Absolutely. There is this relationship that is formed regardless of whether or not both parties want it to have been formed. I have heard people talk about the situation that victims are in when the person has been given the death penalty. They are now in a situation where they are denied the opportunity to come face-to-face with the person who caused their suffering. Worse yet, they haven’t been given any control or choice in that decision.

For some people, the face-to-face contact need not be with the actual offender. I know of a man here in Massachusetts, Dick Nethercutt, who recently went through a victim-offender mediation with a proxy. Dick’s own healing journey in the aftermath of his daughter’s murder led him, over a considerable period of time, to doing work in prisons, and then to restorative justice. He was at a conference listening to a man speak of the pain of not being able to meet and apologize to the family of someone he had killed in his youth. One of the pains in this man’s life was that his victim’s family did not want to meet with him, even after many years, and one of the pains for Dick has been that the offender who raped and murdered his daughter over 25 years ago never acknowledged guilt. So these two individuals, Dick and the offender he heard at a conference, agreed to do a kind of surrogate victim-offender mediation with each other which, according to Dick, was profoundly moving and healing for both of them.

I hesitate to suggest that this would work in all cases because I think people have their own journeys. One of the best things we can do is think of ways to facilitate each victim’s and offender’s journey with the understanding that it might be a life-long journey.

It sounds like healing becomes very closely allied with justice in the world of restorative justice. Is healing important at all in our traditional system of justice?

I would say not at all. Our traditional system rests on an understanding of balance through power and domination. In a crime, the offender has taken power away from the victim and raised themselves up; the state then comes in and puts the offender down and exercises power over the offender to restore balance. Essentially, this is a form of violence, albeit, a “just” form of violence.

Isn’t it simply a matter of punishment?

I believe punishment is the deliberate infliction of harm and suffering, against somebody’s will. This is essentially violence. Healing, on the other hand, has to do with elevating the victim, devoting resources to the victim, trying to achieve a different kind of balance by restoring the victim to a higher plane.

It seems that healing takes place when both people are on an equal plane, at least emotionally.

This is something that a lot of people struggle with in restorative justice partly because when we as a society talk about a crime, we isolate one act out of a whole context and history of acts and relationships. So, we do something fairly artificial to begin with: a single act isolated as a legal crime. That’s not how we experience life, which is why I don’t think a restorative approach is all that complicated. When we sit down as human beings to discuss a particular incident where somebody has hurt somebody else, we can recognize the history and context of that act but we can also see that in the moment, it really does matter that the victim has suffered and is in need of support and healing. The victim is held up first and foremost, and as a consequence the offender feels shame. So in a way they are not on a equal plane at the outset. Once the offender acknowledges responsibility and takes action to repair the harm, then equity is restored.

There is this huge debate within the restorative justice movement over the appropriateness of the word “shame” or even the understanding of “shame.” There is tremendous fear that people will intentionally shame an offender. But how it’s really understood by Braithewaite and others is that the offender will naturally feel shame in looking at what happened to the victim. That sense of shame is not intended to put them down, but they do feel that sense of shame.

Is remorse maybe a better word for it?

Yes, I think that might be a much better word. Remorse is not a verb. It’s something felt by the person who caused harm.

Or self-realization as a step toward redemption. For Raskolnikov in Dostoyevsky’s Crime and Punishment, redemption was on the other side of remorse. It seems that our system of punishment creates a barrier against the very natural feeling of remorse that, ultimately, might lead to redemption.

Which is an element of healing. I think that in some ways when we think of healing we think of the one that was harmed or sometimes people think of the fact that many offenders were harmed in the past. However, if you think about the kind of redemption that comes from being truly accountable for one’s misdeed and then doing the right thing, this idea of earned redemption is also part of a healing process.

Remorse and redemption reconstitute an offender as a full moral agent and lead to restored moral inclusion in the community. The irony is that what we do now is punish somebody to uphold the moral standards of the community, but to the person who is being punished, they are permanently rejected from the community. We offer no way to invite them back in. There is absolutely no mechanism for having them earn their way back into the moral good graces of society.

Doing time?

Doing time is a stigmatizing, degrading process that bears a lifelong stigma within mainstream American society. There is no formal legal ceremony which marks the end of punishment or even a process to bring back ex-prisoners which says that their period of exile is over and they are welcome back. And as you know, the experience of incarceration is certainly not a healing process for prisoners as moral human beings.

What language do we have besides “restitution” for carving out some kind of constructive activity that could relieve the remorse of the offender and make him or her feel welcomed back into society?

Dennis Maloney uses the term “earned redemption.” He pioneered a restorative way of thinking about community service as a form of earned redemption. He tries to think of ways people can earn their way back into the good graces of the community through a deeper understanding of community service.

Does that work as a reintegration of that person into the community?

There are many pieces still missing. We have so many people locked up in our society and we literally dump them back out without any support or assistance. We send them off in a ceremony of degradation but they kind of slip silently back into the community. There are no mechanisms for re-integration. Community service may help, but it’s not enough. In Springfield, Massachusetts, there are restorative community accountability boards staffed by volunteers who start meeting with offenders about six months before they are released from prison. They often continue once they are released, as well. I’ve sat in on these meetings. At the early stages, the community wants the offender to fully acknowledge what s/he has done. They work with offenders to help them to understand the impact of their behavior. Then they work with them to help them act differently when they are released. They want them to be good neighbors and members of the community and they are willing to help them do so. What is really helpful is that there are ex-cons on the boards who understand how hard it is to change your lifestyle. Some of the former prisoners come back to serve on these boards themselves so that they in turn can do the same thing for other people.

This word restorative means restoring relationships, restoring community but the way you are describing it, it sounds really like restoring self is at the very foundation of all this.

Yes, self and self in relation to others. We are relational in terms of how we experience ourselves so that is core to the whole process of restorative justice.

Does the terminology of restorative justice convey this?

The term “restorative justice” was first coined in 1977. Albert Eglash wrote an article distinguishing rehabilitative justice from retributive justice from restorative justice by which he meant restitution. All through the 1980s people used a variety of terms to refer to restorative justice: the term “relational justice” was used in the U.K.; “transformative justice” in Canada but also “reparative justice” and “satisfying justice.” Many people like the term “transformative justice” because of the idea of transforming the relationships involved to more equal and just relationships.

Which of these terms do you prefer, and why?

I think that “transformative justice” is really important or, at least, the concept of transformation. “Restoration” can be confusing because some things can’t be restored. Actually in truth, you can never undo the fact that a crime happened even if it’s a trivial crime. So it’s always going to be a different future and you can’t make that go away. You can’t “restore” anything in the sense of going back and changing the past.

When we talk about restorative justice, what do we mean by the word community, and what is the role of the community in the restorative justice process?

The community is so important because the real power to influence both the healing of victims and the changing of harmful patterns of behavior is held within relationships that exist in the community. The understanding is that the community — through all of the relationships that are in the community, including family and other positive connections — needs to be activated to create a more positive future, for individual victims and offenders and the wider community.

At a practical level people have focused on the idea of “micro-communities,” or sometimes people use the term “communities of care.” For any given crime, we begin to involve the “community” by trying to understand who is connected to you personally. The idea of community radiates out at a micro-level from those individuals.

In a sense the community is a witness. Later on in the series we are going to be talking with Cheryl Conner and Kaethe Weingarten about the “wounded witness.” In your experience have you encountered instances when the community suffers as it bears witness to harm?

Absolutely. The people that we have asked to be on the forefront of our traditional justice system sit right in the middle of both witnessing the harm that victims suffer and, to various degrees, being asked to do harm in our names to those we call offenders. That’s a very depressing and difficult emotional place to be, and they are not really given a lot of tools to deal with those emotions.

Coming back to the role of the community as bystanders or wounded witnesses, I also think that the healing capacity and the transformative capacity for victims and offenders lies within the understanding that we are all in a relational network with each other. In fact, victims are not being asked to carry the burden of overcoming their anger and forgiving an offender alone; in some ways that’s the role of the community. Thus, the community has different sets of responsibilities to the victim and to the offender; it is the community that is in a position to form a connection to both of those parties without asking them to do it themselves.

It’s another relationship isn’t it, a three-way relationship between the offender, the victim, and the community that must be brought back into balance?

Yes, and that’s very critical because this interconnectedness basically says that communities are responsible for the well-being of their members. The Native American understanding is that if somebody is committing a crime, they are out of balance, and if they are out of balance, we (the community) are out of balance. When somebody is doing harm that act is not committed in isolation or caused only by what is going on inside of them as an individual. At such moments, the community must look at itself and ask what it should be doing to take responsibility for healing the suffering of the victims. It is not a third party but an equal party in and of itself.

Our final interview will be about local and global implications. We are focused on local implications here but I think that what you just said about how our relationships radiate out from micro-communities, especially in a global society, illustrates how our identities are connected to our state, our country, and the world. If we are responsible for each other and the harm that goes on in the world, how would someone coming from a restorative justice perspective see our world today?

Obviously restorative justice has a lot of resonance with a human rights perspective. We no longer accept the notion that what goes on behind closed doors is none of our business. In other words, we share an understanding that there are no boundaries that keep violence and cruelty shielded from our collective responsibility. There is a real connection in the world today provided by NGOs. They are using very similar kinds of understandings as those we rely on in restorative justice.

How does restorative justice relate to other social movements in the U.S. and elsewhere?

I talked a little about human rights and a kind of global peacemaking. I also think that feminism is, in some ways, very relevant in terms of the understandings about an ethic of care or a feminist approach to justice. This relates to the capacity to embrace principles about the value of human beings and a commitment to a nonviolent approach to conflict resolution. Theoretically, I think that feminism has a lot of resonance with restorative justice. But in terms of its practical aspect, I would say that the feminist movement has been most influential through its impact on the victims’ movement. In other words, where the feminist movement has had most impact on restorative justice is by raising awareness around victims’ issues, the psychological trauma of crime, and what is needed for healing. Feminists have been rightfully nervous about anything that looks like it might go back to the days when we would send domestic violence cases to mediation and not even be aware of the power imbalance within that relationship. Feminists have been wary of the restorative justice innovations.

When you look at feminist values, however, these values don’t support the “perp” mentality which focuses on demonizing men who commit violence against women. The use of the term “perp” is a degrading term which essentially valorizes the use of state power and violence as a route to justice; this is in conflict with feminist ethics. The feminist movement has made such great progress in criminalizing male violence toward women and raising the issue of power imbalances, tolerance of male violence, and safety issues for women and children. It is totally understandable that feminist activists would take a hard line towards male offenders in pursuit of that agenda. But a restorative approach to justice is inconsistent with the dehumanization of male offenders and a punitive approach to their crimes. A restorative approach to domestic violence needs to build on the hard-won knowledge of the feminist movement but move beyond it by shifting toward a restorative lens for offenders as well as victims. This is a delicate and slow process which should take care not to jeopardize the safety of women or undermine the legal and moral condemnation of male violence towards women.

Is there evidence that restorative justice actually works?

Now that restorative justice has been around for almost twenty years and has seen significant growth within the last 10 to 15 years, we are starting to see the data and research results come in and the research data so far is very clear on three key points. First of all, victim satisfaction: victims report high levels of satisfaction with restorative process, significantly higher than with experiences in traditional court processes. For example, they report feeling a substantial reduction in feelings of anger, fear, and anxiety. This is confirmed in relatively large-scale studies which include solid methodological controls through random assignment of cases to restorative conferences or to traditional courts.

The second robust research finding is that offenders report high levels of satisfaction with restorative justice processes. They perceive it as procedurally fair and they feel they were treated with respect. Results also show significantly higher rates of completion of restitution agreements in restorative processes as compared to traditional court processes. Worldwide completion rates of restitution orders within restorative justice programs range between 64 percent and 100 percent, which is significantly higher than rates of completion for court-ordered sanctions.

Promising recidivism data is now starting to come in as well, although I must say I think we should always exercise caution when using recidivism as a measure of the effectiveness of the justice process.

Why is this a problematic measure?

Criminal conduct is behavior which is deeply rooted in the social context of a person’s life and the life of the community. In the traditional way of thinking, we tend to only focus on individuals: did they change or did they continue violating the law and we don’t ask enough questions about whether or not anything else changed in their relationship to the others and to the community. The restorative understanding is more holistic so focusing on individuals alone as we traditionally do in recidivism studies is problematic.

Another variable is that some restorative interventions are more intensive than others: a circle process may go on for two years and focus on changing a whole pattern of relationships within a community versus those restorative processes which consist of only a single meeting between victims and offenders. Obviously one type of process is more likely to have more far reaching impact on recidivism than the other type.

But there certainly is research going on that is measuring recidivism for restorative conferencing projects, and so far the results look good. In Canada, a recent study compares pre- and post- rates of offending among high-risk adult and juvenile repeat offenders going back five to ten years prior to going through a restorative justice process and five to nine years after being involved in restorative programs. This research took place in the Yukon region of Canada where there are a number of programs in operation now for a considerable period of time. And in this study all the programs show a substantial reduction of about 60 percent in the quantity and seriousness of re-offending after the restorative intervention. This is very high and it holds true even for high-risk adult and juvenile offenders. Encouraging results are also coming out of Australia and the RISE project looking at the use of family group conferencing there. And in the U.S., a study of police conferencing found the rate of re-arrests to be 40 percent lower in the conference group than in a control group after six months. A year later this dropped to 25 percent, but it was still significantly lower than the control group who experienced the traditional justice system. So the results appear to be headed in the right direction.

If I want to learn more about restorative justice, what should I do?

In the past I have recommended Howard Zehr’s book entitled Changing Lenses, but now I would also recommend his new book called The Little Book of Restorative Justice, partly because I think his own understanding has evolved since he wrote the first book in 1990. He now has a much greater sensitivity to victims. I also think that going on the Web and visiting sites is a good resource.

Is there a way for ordinary people to become involved in restorative justice or maybe to support or influence programs in their communities?

Yes. I would say that from my perspective, ordinary people are the heart and soul of restorative justice. I would encourage people to look and see what might be going on locally. They could begin by speaking to people in their own communities: their faith community, school, police chief, district court judge or probation, or folks in a local correctional facility. As Margaret Mead says, "There are no limits to what a small group of committed folks can do."

PHOTO BY BRIAN SMITH, THE CHAUTAUQUA DAILY

Print Friendly and PDF