RESTORATIVE JUSTICE: THE ROLE OF THE COMMUNITY
by Paul McCold, Ph.D.
Paper presented to the Academy of Criminal Justice Sciences Annual Conference, Boston, March 1995 by Paul McCold, Department of Sociology and Criminal Justice, OldDominionUniversity, Norfolk, Virginia.
This paper discusses the need for a new approach to justice, especially criminal justice.The broad principles of the Restorative Justice perspective are reviewed, and examples provided of how these principles are applied in practice.The author then suggests that the role of the community in the victim-offender-community relationship needs to be more fully developed to complete the paradigm. After discussing the various levels of "community", the needs and responsibilities of communities are discussed. The author then considers the paradigmatic implications, and suggests how these principles might be applied in a holistic restorative justice approach.
Our country seems gripped in an addiction to a powerful drug, one more destructive than all illegal drugs combined. This drug is vengeance. Vengeance seems the primary driving force behind our current criminal policies. When we feel the pain and fear caused by crime, we demand ever greater punishment of offenders, as if this will bring relief. As a country, we seem to be turning more and more to harsher punishment, as if we know of no other way to stop the violence. In spite of huge increases in prison populations over the recent years, there never seems to be enough punishment to satisfy our craving. The escalating level of the "get-tough" rhetoric only seems to fuel the public fear, which generates an ever greater demand for punitiveness.
Existing structures, institutions, relations, and values create the problems that we then turn around and ask them to solve—or rather, control—using the very same structures, forms and values, which in turn leads to more problems and greater demand for control. (Harris , 1991)
We are already the most punitive nation in the Western world, and still we continue to construct more prisons. In spite of the lack of any credible empirical evidence that punishment of any kind or amount reduces crime, American political institutions continue to get tough on crime. The myth that punishment can prevent violence (Pepinsky & Jesilow, 1985) seems rarely challenged. "And because people learn from the nature of the processes in which they participate, as well as from the objectives of those processes, we should give greater attention to what the process teaches and how it is experienced" (Harris, 1991). What lessons does our punitive and obedience-oriented criminal justice system teach? If we could only deal crime a lethal dose of vengeance . . .
We encounter injustices daily, in our homes, our places of work, and in the affairs of nations. We can ill afford to respond to the grievances, large and small, in ways that are likely to prolong and escalate conflict, perpetuate cycles of violence. (Peachey, 1992, p. 556)
The American public's desire for vengeance is deeply ingrained in our history (Newman, 1978). The widely held belief that increasing the punishment for offenders will lead to fewer offenders has proven to be a myth repeatedly through human history. Only by renouncing the social values and institutions which promote the myth that violence can be overcome with punishment—evil with evil—and exposing the "myth of redemptive violence" (Wink, 1992), can we ever hope to escape the cycles of vengeance and violence (Mackey, 1990).
Ultimately, our current system of criminal justice is in pursuit of safety and justice for our communities. A punitive and vengeful approach to criminal conflict can only increase the level of violence which is already endemic to our culture (Pepinsky, 1991).
The cries for retribution throughout this land are cries for safety, for justice, and for relief from an unworkable criminal justice system. So long as we hear the cries for retribution, we know that we have not achieved justice. The community has been broken and has not been restored. (Mackey, 1990, p. 15)
There is a growing amount of literature on an alternative approach to punitive justice. Restorative Justice offers a different "paradigm" of crime and society's response to it—and is suggested as a replacement for our existing criminal justice system (Zehr & Umbreit, 1982, Weitekamp, 1991, Galaway, 1989).
[Restorative Justice] is not just another technique for trying to solve the old problems of criminal justice. It is a practice that contains the seeds for solving a new problem—the inadequacy of the criminal justice system itself, as it lurches from crisis to crisis, based as it is on an outdated philosophy of naked revenge. (Marshall, 1992, p.26)
The paradigm is shifted once the implications of the rejection of punishment as a response to conflict begin to emerge. This perspective grew out of work with crime victims and efforts to help victims find a sense of healing. 1 "Forcing the perpetrator to suffer does not really alleviate the victim's distress, nor does degrading the wrongdoer erase the humiliation felt by the injured party" (Karmen, 1990, p. 31).
Restorative Justice views criminal conflict as an injury to personal relationships and the "property" of those involved (Christie, 1977). It replaces "punishment" of the offender as the basis for justice, with attempts to heal injuries of all parties involved in criminal conflict: victim, offender, and community. Crime is a serious form of interpersonal conflict involving concrete harms (Zehr, 1990, p. 184). Crime is only one type or level of interpersonal conflict which becomes a crime when there is serious injury to a person or property. Offensive and unhealthful acts affront the sensibilities and preferences of society, but these conflicts are social problems, annoyances, public health problems—not crime. 2
Conflicts are the property of the victim, the offender, and their local community. Victims are people who are directly injured by crime. The victim might not be a person, per se, in the case of property crime against businesses. The victim might also be the community, if community owned property is damaged. Otherwise, the community has a direct interest in the conflict, but is not the victim. 3"Crime is a violation of people and relationships" (Zehr, 1990). The community, family members of the victim,and even the family members of the offender are all secondary victims, and have needs directly related to the crime. This is much different than viewing crime as an offense against the state, the society, or the community. Also, the offender is not the victim. While most offenders have previous histories of victimization, each of those have a corresponding offender, and are not at issue regarding present responsibilities.
Crime victims have a variety of needs created by the harms they suffer in the crime. The loss of control and orderliness experienced in their lives by victims is often more damaging than any physical or material loss suffered. They need to bring meaning to the crime event to restore predictability and order in their lives. Crime victims need vindication that what happened to them was wrong and undeserved. They need opportunities to express and have validated their anger and their pain. Victims need to be restored to a sense of control and safety in their lives (Zehr, 1990).
Among crime victims' needs are for the offender to understand the injury caused them, as well as their family and friends. If the offender could be made to appreciate the injury caused and develop a sincere sense of lament, the victim could have the chance to heal emotionally from the harm and go on with their lives. The act of holding offenders accountable for their actions not only goes a long way toward healing the victim, but is the beginning of bringing some real healing to the offender as well.
Offenders do not need to be punished. They need to be held accountable. Real accountability includes taking responsibility for the results of one's behavior. Offenders must be allowed and encouraged to help decide what will happen to make things right, what they can do to undo the harm they caused. Only by empowering offenders in this process can they learn to take responsibility—to begin to learn to become responsible.
Restorative Justice is very different from our repressive and punitive system of justice (the obedience model)4. Much of the theoretical perspective of Restorative Justice evolved "experientially" from the Mennonites' involvement in victim and offender programs culminating in the seminal book Changing Lenses by Howard Zehr (1990). Other religious groups who had been exploring related criminal justice reforms quickly included the banner of restorative justice in their social ministry. As the "paradigm" has developed thus far, however, the practice has tended to lead the theory (Knopp, 1992, Rock, 1994, p. xiv). "[R]estorative justice is hardly a paradigm at this point. Indeed, I think we are not very close to having even the skeleton or the outlines of a new paradigm" (Harris, 1989, p. 37). Much has occurred since the release of Changing Lenses, and the paradigm continues to evolve.
Until very recently, Restorative Justice approaches, in practice, have been limited to (a) victim restitution programs, (b) offender accountability and victim awareness programs, and (c) victim-offender reconciliation programs. Karmen (1990) suggests that the support for restorative schemes include at least four distinct groups with divergent goals and clashing philosophies. 5 The four groups view reparation as 1) a punishment oriented toward the offender (victim in line after the state), 2) a treatment mechanism for the rehabilitation of the offender (offenders need accountability), 3) a way to help victims (victims have a right to recompense), and 4) a vehicle for reconciliation of relationships. Such divergent interests have produced a wide variety of program approaches in the effort to implement Restorative Justice principles (Roberts, 1990, Crawford, et al., 1990).
One early restorative approach has been restitution. Offenders owe something to their victims—at least they should pay the victim for out of pocket financial expenses occurring as a result of their wrongful act. Restitution is not new, and its recent rediscovery has led to a plethora of programs implemented in diverse jurisdictions which seem to receive wide-spread general popular support.
Advocates of restitution—and there are many—argue it's time to get back to basics. Victims shouldn't be neglected by a system ostensibly set up to look after their interests. Criminal acts are more than symbolic assaults against abstractions like the social order or public safety; real flesh-and-blood people suffer losses. Offenders shouldn't be prosecuted solely on behalf of the state or "the people". Justice demands that victims be "made whole again"—restored to the condition they were in before the crime occurred. Convicts must right their wrongs, make amends, and repair what they've damaged. (Karmen, 1990, p. 277)
Why should justice systems require offenders to repair the damages their crime inflicted? Under what theory of punishment? As an added punitive deterrent, an additional "fine" imposed upon the offender would add little to a threat of a longer prison sentence. As rehabilitation, the offender might gain some insight to help change his behavior, but the concern is for the offender, not the victim. Likewise, under a retributive scheme, restitution could also be justified to make the punishment better fit the crime, also directed at the offender. 6 However, to combine the justice aspects due to victims and the therapeutic effects perceived for offenders requires an entirely different theoretical perspective.
No theory of punishment includes an equal place for crime victims' concerns. 7 That no theory of punishment is adequate to resolve victims needs is self-evident, although our current system is renown for adding additional injuries to crime victims. Restitution or community service under the existing justice system will necessarily be offender-focused, and therefore, anti-victim biased (Shapiro, 1990). "Even when courts order restitution, and the judgment thereby seems to favor the victim, restitution as a sentencing option still embodies, first and foremost, the penal and correctional interests of the state" (Karmen, 1990, p. 282, citing Triebwasser, 1986).
There has been a recent flurry on the part of some correctional authorities in the US to implement programs in their facilities stressing the importance that offenders (especially juveniles) understand the consequences of their actions. The federal government, California, and Minnesota have taken legislative and administrative action to include victim awareness sensitivity training in their rehabilitation programs under the name of restorative justice (National Victim Center, 1994, California Youth Authority, 1994). Often times, these programs include victim restitution and community service sentences in their package of restorative justice reforms, along with intermediate community-based surveillance and sanctioning systems (Bazemore & Maloney, 1994, McLagan, 1992). Yet, it seems self evident that any restorative scheme implemented and operated by correctional institutions will also necessarily by offender focused.
Concurrent with the growth in this country and elsewhere in the concern and services for crime victims have been programs offering victim-offender mediation/reconciliation services (VOM and VORP). "Victim-offender reconciliation programs, usually run by nonprofit community groups, use negotiation and mediation to make the process of reparation therapeutic for both parties" (Karmen, 1990, p. 285). These programs are based upon the premise that crimes are harms done by one person to another person, and that the resolution of justice must directly involve the parties to the crime. VORP, like restitution, assume that offenders owes something to their victims, and need to assume responsibility to the victim directly. The details of what is owed is worked out in an agreement directly between the victim and offender. A trained mediator helps the parties find a mutually satisfactory method of reparation and restitution.
Victim-Offender programs have been implemented in a number of communities in the United States and Canada. Many other countries are developing growing programs, including Japan, England, Germany, Finland, the Netherlands, and Sweden (Umbreit, 1994). In New Zealand and Australia, these principles are incorporated into their basic approach to juvenile justice (Galaway, 1992, Morris & Maxwell, 1993, McElrea, 1994). Early results from program evaluations conducted thus far, demonstrate the success of this approach for victims, offenders, and society (Umbreit, 1994). However, as examples of Restorative Justice principles in practice, VORP/VOM must be seen as only a part of a larger whole.
It is proposed that the practice of victim-offender reconciliation falls considerably short of the structural requisites suggested by the restorative paradigm: The practice reveals, instead, an astructural bias, lacking in deliberate strategies to address the interdependence of broad social factors that give rise to conflict and impede or shape its resolution. (Mika 1992, p. 561)
What are the structural processes that Restorative Justice proposes to alter the social inequities and values that contribute to the production of crime on the street? "The question becomes whether reconciliation programs and organizations can be more sensitive and responsive to the larger profile of conflict that envelops episodes of crime and delinquency" (Mika 1992, p. 563) . Overly focusing on the process of saving individual victims and offenders could divert attention from the root causes in society that continuously produce a never ending supply of victims and offenders.
Since Restorative Justice has begun to crystallize as a paradigm only recently, it is expected that implementing systems of Restorative Justice will involve a trial-and-error developmental process. Those implementing various programs undoubtedly have differing agendas. "There are so many different aims and touted benefits that no sweeping conclusions about the effectiveness of programs now in operation can be drawn" (Karmen, 1990, p. 296). There is a danger in promising to be all things to all people in criminal justice reforms (Griset, 1987). It is important that this "restorative" movement clearly delineate its theoretical principles.
The answer to this "astructural bias" of Restorative Justice approaches may reside in the least explored leg of the three legged stool—community. Delineating the role of the community in the Restorative Justice paradigm is essential to complete the theoretical structure. While individual "community" citizen's have been involved as volunteer mediators or service providers, restitution, community service, victim awareness and VORP have all failed to include a strong role for the whole community in the process. "[L]aying out ways to operationalize the admirable notion of eliciting more active community involvement in the reconciliation process remains an elusive task. "(Harris, 1989, p. 35)Individual citizen voluntary participation in the justice process is a valuable beginning. 8
In a society with values emphasizing citizen participation in the affairs of state, increasing citizen participation does not require further justifications: it is a goal sufficient in its own right and does not need to be defended as leading to some more long term benefit. [Increased citizen participation will occur in two ways]1) citizen victims,and 2) citizen negotiators, citizen volunteer case managers. (Galaway, 1989, p. 112)