http://www.denverda.org
http://www.ojp.usdoj.gov/ovc/
 

Mitchell R. Morrissey
Denver District Attorney
 
Unit 7:
 
 
Restorative Justice
 

Rationale
: To provide an introduction to restorative justice as an adjunct to traditional criminal justice procedures for some non-violent or young offenders.

Format:

Reading: God and the Victim
Chapter 8: “Restoring Justice” Howard Zehr

Transcending: Reflections of Crime Victims – Howard Zehr
Pages 126-183

Assignments:
Write a 2 – 3 page reflection paper on the experiences of the victims in the Transcending: Reflections of Crime Victims reading. Do you think these victims are common or uncommon? Why?

Activity:
It is suggested that the instructor contact the juvenile prosecutor’s office to determine if any restorative justice practices are conducted in their community. If so, consider inviting a juvenile judge or prosecutor to discuss the program with the students.

Lecture:
The issue of forgiveness is complex. In some cases where forgiveness is achieved, reconciliation or the re-establishment of relationship in some form becomes possible. In cases where this cannot occur, a victim may need support around the loss of the relationship. The concept of restorative justice, while not necessarily focused on forgiveness and reconciliation, is based on that principle that following a violent act, a remedy should be identified that benefits the victim, the offender, and the community.

In Dan Allender’s chapter in God and the Victim; “Forgive and Forget and Other Myths of Forgiveness,” Joan Orgon Coolidge states:

“There is often confusion about the terms forgiveness and reconciliation. Reconciliation is the restoration of the relationship between the parties, whereas forgiveness can happen independently. Forgiveness is available to us spiritually because of what Christ did on the cross. But the promise of reconciliation is still in the future. Forgiveness is a precondition for reconciliation, just as justice is a precondition for Shalom. When all the different relationships in the Kingdom are righted, we will have that reconciliation, and that is the enjoyment of Shalom.”i

Restorative Justice is another form of justice, but it is rarely intended to replace the adult criminal or civil justice systems. However, it can sometimes serve as a useful adjunct to them. Restorative justice practices are more common in the juvenile than the adult justice systems, and more common with property crimes than crimes of personal violence.

Historical Roots

The Bible

Judeo-Christian theology has focused on the concept of shalom, God’s desire for the fullness of well-being between individuals and within communities. An often quoted Scripture in Restorative Justice circles is Micah asking, “What does the Lord require?” The answer is “to do justice, and to love kindness, and to walk humbly with your God.” (Micah 6:8) Western society has interpreted the “justice” in the reference as making sure offenders get what they deserve. Restorative Justice focuses more on the question, “From a position of kindness-tempered justice, what do both the victim and the offender need?”

In the New Testament, Jesus says that when someone has sinned against another (although the degree of sin is not stated), the person harmed should go to the offender, even though it may not result in the offending person repenting (Matthew 18:15-17). Jesus is considered, among other titles, the Prince of Peace.

Native American Spirituality

The roots of restorative justice go back thousands of years to the Native American conviction that all creation is to live in harmony; when harmony is disrupted it must be restored. Many tribes believe that crime happens when an offender has failed to remember that all human beings, as well as all components of nature, are to live in a peaceful, harmonious relationship. Traditional Native American spirituality emphasizes that ultimate justice is up to the Creator, and human justice is to focus on restoration of harmony rather than revenge or punishment. For example, Native American peacemaking circles, talking circles, or circle sentencing may bring together the offender and his or her family, the victim and his or her family, spiritual leaders, elders, and local social services personnel to determine together what needs to happen in order for harmony to be restored in the victim-offender relationship and in the community.

On the other hand, many Native American tribes understand that some offenders who do not decide to change their lives need tough sanctions. Navajos, for example, may want to start with a talking circle but also recognize that broken laws should be reported to authorities. Some even consider the death penalty as the ultimate form of banishment when the offender, after being given traditional opportunities, expresses no remorse and indicates no willingness to change.

Mennonites, Quakers, and the Amish

Dr. Howard Zehr, an internationally known criminal justice professional who teaches in the Conflict Transformation Program of Eastern Mennonite University in Harrisonburg, Virginia, is considered the founder of the contemporary restorative justice movement.ii Mennnonites, Quakers, and the Amish have long histories of seeking non-violent and peaceful solutions to problems. However, Dr. Zehr points out that restorative justice is not a simple way out of assuming responsibility and making reparations. He tells us what restorative justice is not:

  • It is not primarily about forgiveness and reconciliation;
  • It is not always mediation;
  • It is not designed primarily to reduce recidivism;
  • It is not a replacement for the existing justice system;
  • It is not necessarily the opposite of retribution or an alternative to prison.
  • iii

It is however, Dr. Zehr says, concerned about needs and roles of victims, of offenders, and of communities. Restorative Justice acknowledges that victims need information, the truth about what happened to them, empowerment, and restitution. Offenders need to be called to accountability, to experience personal transformation, to be reintegrated into the community; and some will require temporary restraint. In this model, communities are recognized as a class of victims, with opportunities offered to build a sense of community and mutual accountability with concern for the welfare of both victims and offenders.

The Focus of Restorative Justice

The People Rather than the State
Rather than emphasizing the particulars of the law that was broken, Restorative Justice looks at the people involved and the damage done. Restorative Justice focuses on the possiblity that a victim has been "broken" and the possibility that the offender has also suffered pain in his life. The neighborhood, the community, as well as the individual, became fractured by the offender's behavior. That does not mean, however, that the criminal and civil justice system should be ignored.

A Four-Party System

Rather than the traditional understanding of crime as a two-party system, the State vs. the Offender, Restorative Justice considers four parties: the victim, the offender, the community, and the government.

Consider the following example. A man assaults and robs another man in the community. The victim is a stranger to the offender and was selected because he looked like an easy target. Restorative Justice would say that the offender, duly prosecuted and sentenced, should be criminally sanctioned.

Consider, however, that while serving his term, the offender spends a lot of time thinking about what he has done and decides he would like to meet with the victim to apologize.

Issues for the offender might include:

  • How has committing this crime damaged him and his family emotionally and spiritually (as well as materially if he goes to prison)?
  • Does he genuinely want to repent or is he using this strategy to reduce his prison time?
  • Does his apology include a willingness to try to make it up to the victim somehow, perhaps by paying back the money that he took and helping with the victim’s medical bills?
  • Does his apology include a commitment to the community that he will not repeat this behavior?

Issues for the victim might include:

  • How much was he damaged by the crime physically, mentally, emotionally, spiritually, and materially?
  • How much was his family damaged by what happened?
  • Does he want to establish a relationship with this person when he did not have a relationship with him in the first place?
  • Has he considered how he will feel if the offender decides to ask for forgiveness?
  • If he decides he does not want this meeting, at least for the time being, can he reject the opportunity without feeling guilty?

Issues for the community might include:

  • If this offender returns to our community, how can we hold him accountable to not again perpetrate this or another crime?
  • Will the victim still be respected in our community if he decides he does not want a meeting with the offender?
  • What can our community do to protect potential victims from those who choose to assault and rob?

Issues for the government include:

  • Given our mandate to protect the public safety of our citizens, what should the court and the parole department know about this offender’s likelihood of disrespecting the law again?
  • Is the wording of our statute against assault and robbery appropriate?
  • Do statutory or constitutional victim rights adequately recognize the needs of victims?
  • Do our sentencing guidelines adequately consider the needs of the victim, the offender, and the public?

Types of Restorative Justice

Numerous program models reflect restorative justice principles. The following are most commonly used today, but none have found their way into mainstream criminal justice circles. Clergy may be interested in working with criminal justice professionals to consider some of these programs for their own communities. Others may want to inquire about these kinds of programs in community corrections where they seem to be most common. The National Center for Victims of Crime has introduced the concept of "parallel justice" (See Neve's Networks, 14, 2, August 1999) by pointing out that we have a societal response to offenders that says "You violated the law, so we hold you accountable. We will punish you if it is appropriate, isolate you if needed and offer you services to reintegrate you back into the community." The societal response to the victims should be, "What happened to you was wrong. We will help you rebuild your life, regardless of what happens to the offender."

Victim Offender Reconciliation Programs (VORP)
When the Restorative Justice concept was revived and brought to the attention of the American public in the 1970’s, the term Victim Offender Reconciliation Programs was common. The focus was on restoring relationships that were once positive but had been broken. Forgiveness and reconciliation were key components of the program. Since that time, the concept of restorative justice has broadened to include relationships where forgiveness and reconciliation may not be appropriate (such as crimes between strangers, very violent crimes, crimes in which genuine remorse is not evident, crimes such as domestic violence in which the violence continues, etc.) Therefore, the term Victim Offender Reconciliation Program is no longer common.

Victim Offender Mediation
The term mediation then became more acceptable in those cases where reconciliation was not desired or possible, but a meeting was desired. An encounter between the victim and offender was arranged during which agreements or trade-offs could take place. Common use of this term centers on divorce mediation where the relationship may need to continue for the sake of the children, and each party must settle on less than they actually desire. One can readily see why this approach may not be appropriate for crime victims and offenders. Rape, assault, and domestic violence victims, for example, have already been rendered powerless by their offenders. It is not reasonable to ask them to negotiate with violent offenders. Faith leaders and counselors who have been trained in divorce mediation should not use that model for crime victims and offenders because of its tendency to be victim-blaming.

However, some components of Victim Offender Mediation can be useful in these cases if the facilitator fully understands the dynamic of the victimization and assures that this powerful/powerless relationship is not reenacted in the mediation. The focus of the mediation should be more on a positive process rather than on a specific outcome. For example, it may be important for the victim to let the offender know how the crime affected him or her and to ask questions of the offender to better understand why he or she was selected for the crime. The facilitator should assure that the victim has the opportunity to speak without being interrupted about the physical, emotional, financial, and spiritual impact of the crime. If the victim wants information, the offender should truthfully tell what happened and why and take full responsibility for the crime. The victim may have in mind what an appropriate restitution plan might entail. There should be no expectation of reconciliation if a relationship was never there in the first place or if the victim does not want to restore a previous relationship.

Victim Offender Meetings or Dialogue
While this process is basically the same as described above, the terms Victim Offender Meeting or Victim Offender Dialogue are now more commonly used because the term mediation implies encouragement to compromise. The focus of the meeting or dialogue is on respectful interaction but not necessarily compromise to level the playing field.

Family Group Conferences
Family Group Conferencing is currently institutionalized for juvenile cases in New Zealand and are common in Australia. However, the mediator is usually a police officer or probation officer, so it is difficult for them to remain neutral. The process is similar to circle sentencing in that both the victim and offender bring their families and friends. In this model, the offender usually speaks first (which may feel like another “powerful over the powerless” situation for the victim). Proponents of this model of Restorative Justice in the United States generally feel that the victim should speak first to restore a balance of power and to not put the victim in an awkward position if the offender asks for forgiveness and the victim is unable to give it.

Community Reparation Boards
These boards are used primarily in juvenile cases but are also used in Vermont for adults who commit minor, non-violent crimes. The process is offender-oriented in that the offender appears before the board, but the victim usually does not. The focus is more on what can be done to restore the community than an individual victim.

Guidelines for Victim-Sensitive Dialogue

In the book Guidelines for Victim-Sensitive Victim-Offender Mediation: Restorative Justice Through Dialogue,iv the following guidelines are offered to assure that victims are sensitively treated in Victim-Offender Meetings or Dialogues. Faith leaders and pastoral counselors may be in a position to help assure that these guidelines are in place for victims they attempt to serve, but should not embark on Restorative Justice dialogue unless properly trained.

Physical and emotional safety for the victim:
Program should be credible with information brochures and a letter of introduction from the sponsoring agency;
  • Facilitator must have ongoing rapport with the victim;
  • The victim should be comfortable with the selected location and seating arrangement;
  • The decision should be made ahead of time about whether first names or more formal names will be used;
  • The program should consider developing a Victim Advisory Council to assure that victims’ needs are addressed.

Careful Screening of Participants:
Before initiating the program, criteria for participation should be clear, i.e., type of offenders, age of offenders, first offenders only or multiple offenders;

  • Be sure the victim wants the meeting;
  • Be sure the offender will take responsibility for the crime before a meeting is arranged;
  • Be sure the victim is prepared to express what he or she needs from the offender.

Choices for the Victim:

  • To participate or not participate, understanding both benefits and risks;
  • To bring support people to the meeting;
  • To select the meeting site;
  • To select the seating arrangement;
  • To decide who will speak first;
  • To terminate the meeting at any time;
  • To ask for meaningful restitution (out of pocket reimbursement of expenses or property, community service, personal services, treatment programs, a letter of apology, etc.)
Choices of the Offender:
  • To participate or not participate, understanding both benefits and risks. (If the victim wishes to meet and the offended does not, the process ends.);
  • To suggest restitution options.

Mediator Responsibilities:

  • To meet one or more times with both the victim and offender individually before the dialogue or meeting;
  • To maintain a calm, relaxed, positive atmosphere during all facets of the process;
  • To listen to the victim’s experience individually and during the meeting;
  • To use victim-sensitive language (for example, avoid the words “reconciliation,” “forgiveness,” “healing,” “restoration,” and “made whole” unless the victim uses them first. These processes are complex and they cannot be meaningfully used without genuine remorse, repentance, and restitution on the part of the offender;
  • To educate all participants about himself and his training as well as the procedures for the meeting including “no interruptions;”
  • To allow silences with no time pressure for ending the meeting. (Silences are considered sacred times for many Native American and Asian cultures.);
  • To help victims and offenders develop realistic expectations for the meeting. For example, victims should not be expected to reconcile, to totally heal, to find the offender willing to go into treatment, to hear the offender ask for forgiveness. Offenders should not expect the victim to forgive even though he may ask for it;
  • To meet with each participant individually after the dialogue or meeting.
____________________

i Allender, D. (2000). ‘Forgive and forget’ and other myths of forgiveness. In L B. Lampman & M. D. Shattuck (Eds.). God and the Victim (p. 213). Grand Rapids: Eerdmans Publishing Company.
iiSee Zehr, H. (1995). Changing lenses: A new focus for crime and justice. Scottsdale, Pennsylvania: Herald Press; Zehr, H. (2001). Transcending: Reflections of crime victims, Intercourse, PA; and Zehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.
iiiZehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.
(pp. 8-15).
ivCenter for Restorative Justice and Peacemaking. (April 2000). Guidelines for victim-sensitive victim-offender mediation: Restorative justice through dialogue. Washington, DC: U.S. Department of Justice, Office for Victims of Crime. ( p. 8-16).