Will restorative justice be a viable alternative to incarceration?
With calls to defund the police and end mass incarceration, this relationship-based program may be part of the solution
America’s criminal legal system is undergoing reconsideration. While there is nothing unique in today’s age about racial bias in policing and the ways in which Black and brown communities have been both under- and over-policed, consciousness around these topics among white Americans — particularly white Democrats — has increased. As activists, scholars and politicians push for stronger reforms to, or the abolition of, incarceration and punitive safety measures, there are deep questions about what will replace, or compliment, our long-broken system.
While lowering prison sentences, reforming tough-on-crime laws, legalizing or decriminalizing drugs and investing in public services are all legitimate ideas, these policies still leave room to consider how society should hold people accountable for harm they commit. Specifically, what for those who have committed violent acts? As the criminal justice scholar John Pfaff notes in his book Locked In, scaling down mass incarceration will not occur without including violent offenders in the framework, as they constitute a disturbingly high proportion of people in state prisons. The question, as always, is what to do about it?
Restorative justice, some context
One of the more intriguing alternative proposals to traditional criminal justice is restorative and transformative justice. (Although there are subtle differences between these two approaches, for the sake of this short piece, I will consider them together.) An attempt to focus on harms, victims, and communities rather than prosecutors, laws, and (sometimes) incarceration, restorative justice brings an offender and victim (or victim stand-in) together to discuss the harm that occurred as they begin to repair each other in a facilitator-mediated dialogue.
Restorative justice has already been in effect in many states, including Pennsylvania, Colorado, and Texas. But most of these programs are only offered to those more likely to be perceived as innocent, including youth and nonviolent actors. And when violent offenders are included in restorative justice programming, it’s almost always as a compliment, not replacement, to incarceration. Still, with the first restorative justice nonprofitrecently cropping up in Brooklyn as an alternative to incarceration for violent, adult offenders, and as pushes for criminal legal reforms grow louder, this policy deserves more attention.
As activists and some members of the Democratic party have showed, there is increased attention on prosecutor’s races, as these locally-elected officials have outstanding power to prosecute individuals, incarcerating them for long or short periods of time, or to divert them completely from incarceration. In Michigan, Pennsylvania and California, for example, engaged citizens have pushed for progressive prosecutors who’ve promised to implement reforms to wind down mass incarceration. That project has already made significant inroads.
It’s those same prosecutors that are most in favor of restorative justice programs. As such, if the trend of electing progressive prosecutors across the country continues, restorative justice programming could follow in its wake, becoming a staple of America’s future criminal legal system.
Some history, results
Restorative justice has been around for centuries, the practice manifesting among different indigenous groups in New Zealand and the Americas, but the project has found a resurgence in the last couple of decades as an alternative, or compliment, to traditional Western criminal justice systems. In the 1960s, Quakers began a movement to abolish prisons, or significantly curtail them, because of systematic abuses inmates experienced. The religious group’s organizing helped lead to the conceptualization of using restorative justice in the United States. But that shift wasn’t exclusive to the American context. The practice continued to spread in the late 1980s and early 1990s, particularly as initiatives for youth.
In 1989, New Zealand replaced its juvenile justice program with a restorative justice one, adapting its system to more closely resemble justice that has been carried out by indigenous communities, like the Maori. Around the same time, Canada instituted restorative justice programs for juveniles at its federal and provincial levels; the U.S. Department of Justice sponsored similar practices for teens who committed criminal offenses; South Africa formed a Truth and Reconciliation Commission — a form of restorative justice, as some describe it — during apartheid’s end; and the European Union and United Nations have both endorsed restorative justice principles.
Ideas rooted in restorative justice shift the focus away from violations of laws to the idiosyncratic harms caused to people and their communities. Centrally, restorative justice emphasizes people and relationships, asking questions about what we owe to one another and how to repair harm after an individual has inflicted pain on someone else. The process generally includes a victim, offender, an outside facilitator, and, sometimes, community members who are connected to the harm.
Still only vaguely understood, the results of restorative justice programs in the U.S. and in other Western countries are promising. A 2016 meta-analysis of restorative justice programs for juveniles, mostly including those operating in the U.S. (77 percent) since 1999, showed a modest reduction in delinquent behavior for the individuals who went through the alternative program. The study, which included a review of a range of restorative justice practices — including circle sentencing, reparative board programs, family group conferencing, and victim-offender mediation — found that youth offenders thought the program fairer than the traditional justice model. Victims had an even higher appreciation for the experience, as they too thought the process fairer, held better attitudes toward their offender and were later more willing to forgive them.
Another review of large-scale analysis of victim-offender mediation across 14 countries over 20 years demonstrated an even rosier picture. Both victims and offenders found the victim-offender mediation process to be fair. In a Washington, DC program, victim-offender mediation significantly helped offenders who had been incarcerated avoid recidivism. Notably, offenders generally enjoyed navigating the process more than they anticipated, some acknowledging the power of forgiveness from their victim. Others felt the programs helped create significant changes in their lives.
A future alternative?
It’s very much unknown the degree to which restorative and transformative justice practices will occupy a space in the U.S. criminal legal system. For now, most of these actions are left to occupy nonprofit spaces or are included as a compliment, not a replacement, to traditional criminal justice.
The practice also maintains its own host of problems. In the previous study mentioned above, a minority of offenders felt victims were using their victimization status as a weapon to cause them harm, and weren’t afforded space to refute or negotiate accusations wielded against them — a claim that is not terribly rare in victim-offender mediation spaces.
Yet, with increased pressure to replace harmful models of punitive justice that tend to perpetuate cycles of violence, bolster incarceration rates and leave communities in disrepair, restorative justice offers an interesting opportunity for a community-minded response to help us repair harm, improve relationships and build more resiliency among those who’ve both hurt others or been hurt themselves.
