Restorative Justice: Types and Limitations – Joe Robinson & Jennifer Hudson, University of Oregon, USA

Defining Restorative Justice Is it a philosophy or a practice?

Is it a means- (process) or an ends-based (outcome) approach?

Is it focused on healing individual harm or community rupture?

What sorts of crimes or violations can be addressed using RJ? What can’t?

What role for state institutions? Should RJ be separate from or integrated with the state?

Without answering at least some of these questions, RJ is in “Alice in Wonderland” concept; the term can mean whatever you want it to.

It can also be defined by the loudest voice in the room.

3 general themes Scholars & practitioners have

only been able to agree on 3 VERY general themes of RJ:

1- Crime is a harm. The state is not a victim of violation, people are.

2 – Offenders have obligations to correct the harm

3 – Both offenders and victims are stakeholders

Problems Flexibility = Generally Good

BUT…

Inconsistent, confusing, directionless, no clear way to evaluate

How do we train volunteers, practitioners, laypeople?

If we don’t have a clear connection from theory to practice, an intervention runs the risk of being ineffective, meaningless, or re-traumatizing.

Typologizing Restorative Justice Strand Focus Scope Example

of Practice

Discipline

Reintegrative Individual Offenders

Micro Victim-Offender Conferencing

Sociology/Criminology

Psychotherapeutic Individual Survivors

Micro Story-Telling Psychology

Communitarian Communities of Meaning

Meso Peacemaking Circles

Anthropology

Insurgent Unjust Social Orders

Macro Social Transformation

Critical Theory

Justice as Reintegration Crime is an inter-personal

violation and not an act against the State

Perpetrators are often also victims

Violation stems from sociological causes

Reintegration can break the cycle of violence and punishment

Reintegrative Practice: Victim-Offender Conferencing

Offenders [and sometimes victims] participate in a discussion about crime and its impact, led by a trained facilitator

What was the harm done? What was the impact on those who suffered because of it?

How can we go about putting it [more] right?

Goals: Offenders take responsibility for what they have done, they realize the impact and the suffering they caused, and ultimately they can be reintegrated into the societies of which they are and must be a part of.

Does Reintegration Work? Short answer: Probably, but to

an extent. Do offenders gain something

from the process? Do victims gain something

from the process? Is there a decrease in

recidivism?

Problems with Reintegration Reintegration is often

coercive Reintegration is limited in

scope and what it can achieve

“Net-widening”

The ideal victim

Where it does it stand in relationship to state justice?

Justice as Healing 1 primary proposition:

That restoring the victim of

harm to a healthful state of psychological well-being is the fundamental act of restorative justice.

Narrative re-empowerment

Rebuilding shattered worlds

Healing Practice: Storytelling

Trauma shatters assumptive world, shatters our belief in our own agency

Telling our stories and bearing witness to stories helps to re-build those worlds and the wider communities.

Telling our story makes the impact of the harm real.

Goals: Narrative re-empowerment, reclaiming personal agency & ownership, recovery from trauma.

Does healing work? Many victims’ advocates say that RJ lacks a

truly victim-centric process.

The evidence is generally positive, but limited.

“Restorative justice provides little victim relief. While that objective appears to be a very low priority, there is nonetheless significant pressure and even coercion to have victims and victim services join the restorative justice bandwagon. Too often, funding for victim programs hangs in the balance; the ‘choice’ may involve a direct affiliation with restorative justice programming, or the prospect of no programming at all (7).” – Mika et al (2004), Listening Project

Proper evaluation of storytelling initiatives is still in its infancy.

Problems with the Psychotherapeutic Strand

Western psychological models are not universal

Offenders’ procedural and human rights may be violated

Healing is also limited in scope and what it can achieve

The language of victimization

The emphasis on forgiveness

Are we promising victims more than the possible?

Justice as Community Communitarian strands generally emanate

from 5 major roots: 1-Abrahimic faith 2-The Navajo Nation 3-North American First Nations 4-Australasian (Maori) Traditional Practice 5-A Southern African ideal of Ubuntu

Though all are highly distinctive, we identify

some commonalities: 1- Designed to facilitate a shift from Western

logic to “empathic understanding” or “thinking with the heart.”

2- All are consensual. Decisions must be owned by the community of meaning and no stakeholders can be left out.

3-While individual health/well-being are important, what is crucial is restoring a shared system of meaning-making, spirituality, and love.

Communitarian Practice: Talking (Peacemaking) Circles

Talking (peacemaking circles)

Violation is not simply done by individuals to other individuals, the whole community of meaning is affected and should participate

Restitution, punishment, and rehabilitation is collectively deliberated and decided. Consensual Decision-Making

Goals: Community repaired and communal networks and relationships are strengthened.

Does Communitarianism work? Limited evaluation, largely

because these in the ideal-type, these practices are indigenous.

Work with FGCs in New Zealand has shown fairly good results but…

Some Maori advocates claim that FGCs are now being used primarily with white offenders and bear little resemblance to their traditional practice.

Problems with Communitarianism Cherry-Picking

Co-Optation

Communitarianism presumes

small close-knit societies, these may be atypical in modern life.

Feminist critique

What happens to those who don’t accept community control or ownership?

Justice as Insurgency “Restorative justice is a form of insurgency

because it ‘competes with’ the state (and power-based arrangements generally) in how it responds to interpersonal or intergroup conflicts and how it defines what harms the human community should give restorative attention to in the first place.” –Sullivan & Tifft (2001)

Restoration into what? Into severed relationships, or weak family structures, or cycles of poverty, violence, and abuse? Into oppressive institutions and structures?

Justice must be a means of social transformation

People must be empowered to own their own conflicts

The whole notion of crime and punishment is state-owned, state-defined, and state-classified. This must be challenged.

Restoration should be a transformative social ethos, not a mere practice.

An Example

From the documentary film “Long Night’s Journey Into Day”

-Reid & Hoffman (2000), Iris Films.

In Closing Is this the limit of

restorative justice? If it is, we need to accept

and work within these limitations.

If it is not, where do we go from here?

What is RJ’s relationship with state justice? Is it insurgent or is it complementary or is it something in between?

What place for punishment? What place for forgiveness?

Questions/Comments Thanks for listening

Further correspondence:

Joe Robinson

The Junction & ADR Center, University of Oregon

jsr@uoregon.edu (028) 7136 1942