Restorative justice seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs after a crime. Photo: TUCHONG

In recent years, some countries have promoted restorative justice in the field of criminal policy, accumulating considerable practical experience and sparking ongoing discussions in academic circles. As a significant measure in global judicial reforms, restorative justice both innovates and challenges many classical legal principles and litigation systems, leading to continuous debates. To shed light on this topic, Chinese Academy of Social Sciences Today interviewed Criminologist Howard Zehr, the founding father of restorative justice, as well as Robert Condlin, Professor Emeritus of Law at University of Maryland Francis King Carey School of Law.

A healing process

On the matter of the broadening applications of restorative justice, Prof. Zehr explained to CSST that “When we started restorative justice, it was all related to the criminal legal system. It was all related to crime and courts. It is now expanding to so many other arenas, as like in the United States’ schools. School applications are huge, a very popular application. Meanwhile, restorative justice is also being used for addressing reparations for the damage done by slavery. There are also some conversations about using it in human resources, colleges and universities, and workplaces, informing a diverse group of people to think about how we live together. For instance, the Smithsonian Museum of American History has a center for restorative history that uses a restorative justice framework to address wrongs. Restorative justice is being used among communities of color in the United States as a way to develop safe communities themselves, while avoiding interactions with police and other kinds of institutions. I really like to see when communities organize to take care of themselves and grow together.”

He further added that victims should never be coerced into participating in restorative justice processes. They need to decide whether they are willing and ready to engage, and the necessary supports and safeguards must be in place. Therefore, ensuring the victims have an informed choice is a key part of restorative justice. Any program should take care to ensure that victims themselves are represented on the board, overseeing decisions and helping with implementation. Meanwhile, all practitioners should receive training on trauma and its impact on individuals. Victims should also have the opportunity to assess the potential risks and benefits of participation and make their own informed decisions.

Challenges

Though restorative justice is making inroads into various domains, it still faces certain challenges. According to Zehr, individuals may be reluctant to give up established practices or depart from what they were taught. Some legal professionals may struggle to deviate from conventional approaches to justice that they were taught in law school, due to their ingrained training.

An additional challenge arises from the potential for practitioners to be unaware of the cultural and class biases inherent in their methodologies. This underscores the importance of listening to a diverse group of people and involving practitioners from varied backgrounds, rather than adhering to a singular implementation model. Zehr explained, “one of the things that worries me is when people come and look at our model and then take it home to their countries, and try to implement it without listening to their culture, traditions and methodologies. It is wrong to just take our methodologies from one cultural context into another. Sometimes, even restorative justice practitioners’ egos can get involved and keep them from listening to other people. I always tell my students that it is really important to keep an open mind and listen to critical voices. it is easy to think that restorative justice is just a wonderful thing, and there can’t be anything wrong with it, but there can be things wrong with it. It can go astray.”

This highlights the significance of having a diverse group of practitioners and recognizing that there is not just one approach to addressing these challenges. For instance, in indigenous communities, it is crucial to engage elders in the process and to glean wisdom and learn from their methodologies.

Government involvement

Zehr said: “I’m really skeptical of governments’ involvement. I’ve seen too often when the government gets involved, all kinds of political compromises are made, things become mandatory instead of voluntary. The process becomes overregulated. In New Zealand, restorative justice is a government sponsored process, and there have been some problems related to that. For example, mediation started out as a volunteer thing, and so volunteers were trained. However, as the government began to regulate it, it got more and more difficult for volunteers to meet the criteria, and it eventually became something that lawyers do, and it just it ends up keeping the community out of it.”

“I hope restorative justice can be more community-based, and what I want from the government is legislation that allows restorative justice to happen, and providing safety in it. Let creativity happen in the community by not micro-managing everything or mandating too much,” said Zehr.

Restorative justice for domestic violence

“We’ve always said, restorative justice for domestic violence is a very complicated problem, because it is such a pattern behavior and it is so subtle. The patterns of violence there are deep in people, and it is so subtle that someone who’s not part of that relationship may not understand the hidden, subtle signals. The people facilitating might not catch on how the abuser is signalling the victim there, so it takes people with training and experience. It takes lots of safeguards, some of the programs have started with separate circles for the abuser and for the victim until they get ready, and then bring them together,” said Zehr.

“So we used to say, don’t do it for domestic violence. But two things started happening: survivors of domestic bonds began to ask for it, and domestic violence programs began to try it with safeguards. The safeguards make sure the violence is stopped, making sure domestic violence experts are involved in the process, and making sure the survivor is really consolable and has what they need to be safe, and so forth. Thus a number of programs have evolved.”

Zehr further explained that despite the existence of various approaches, many survivors expressed a need for alternatives. They often experienced frustration with the traditional legal system, finding the responses from the police and courts unhelpful. This sentiment was particularly prevalent in communities where there was skepticism and distrust towards these institutions. Research has indicated that minority communities in the US are less inclined to seek assistance from the police in cases of domestic violence due to a lack of trust in the system. Consequently, the underutilization of existing systems has resulted in a higher number of victims being harmed. In such instances, restorative justice can offer more effective support than the police, with a high satisfaction rate among individuals who have participated in well-structured programs. It can be beneficial for both the perpetrator and the victim, particularly when support is provided to both parties. However, it is essential to have safeguards in place.

Scepticism for restorative justice

However, Prof. Condlin has his doubts about restorative justice. In his view, “from the beginning of the Common Era (the Garden of Eden if you’re religious), humans, both individually and in groups, have resolved their differences from individualistic (what’s best for me) and collectivist (what’s best for us) perspectives, or some combination of the two. The net effect has been to make the history of human dispute resolution somewhat bipolar. In resolving disagreements, grievances, and claims, people, both in their careers generally, as well as in individual cases, sometimes act selflessly and at other times selfishly (neither term meant pejoratively), in shifting measure. The argument for the superiority of one or the other approach and their variations has been around for a couple of thousand years in other words, and yet in all of that time no one approach has come to dominate. Each has been adopted and acted upon by part of humanity, part of the time. Given this history, it seems sensible to conclude that there are factors hard wired into the human genetic code which both individualistic and collectivist perspectives don’t take into account.”

He further noted that the collectivist perspective appears to prominently overlook the need to address and manage certain socially divisive emotions such as anger, envy, jealousy, greed, revenge, arrogance, self-importance, and competitiveness, which are inherent in human nature.These sentiments are found to different extents in individuals across different circumstances, and historical evidence suggests the behaviors they produce are not easily controlled or neutralized with medicine, education, conversation, training, or instruction, particularly in the short term, which characterizes most relationships in conflict. They are fixed features of human conflict and have been from the beginning.

“Given their longevity, these sentiments must serve important purposes or two thousand years of evolution and natural selection would have removed them from the bag of human disputing practices. This notwithstanding, the argument for restorative justice makes little or no mention of such sentiments or their role in resolving disputes. Instead, it assumes that people are ‘always at their best’ so to speak, and grounds the argument for restorative justice on selected theories of political and social organization. It lacks a complimentary psychology, and this is a strange omission in a program dependent upon the social skills and states of mind of individual parties for its success. Believing that humans can shape-shift into unalloyed communitarians by using restorative justice practices is a little like believing one can change a person’s personality after marriage. One wouldn’t act on that belief in a private relationship; why do it in a public one,” said Condlin.

According to him, the argument for restorative justice shares a characteristic with the argument for Alternative Dispute Resolution (ADR) in that it raises doubts about the ability to deliver justice. Similar to all ADR programs, restorative justice programs do not provide parties with the means to assess their outcomes in comparison to other parties in similar programs and disputes. There is a lack of a reporting system for restorative justice outcomes. However, in order to determine if an informal system is “just,” it is essential to ascertain if it treats parties equally, as equal treatment is a fundamental aspect of justice. Yet, parties involved in restorative justice programs are unable to gauge their outcomes in comparison to others in similar situations.

As Condlin further explained to CSST, proponents of ADR have attempted to address this issue by regarding party satisfaction with outcomes as evidence of equal treatment, equal treatment as evidence of fairness, and fairness as evidence of justice. However, statements of satisfaction can only serve as reliable indicators of equal treatment if they originate from fully informed parties, and parties cannot be fully informed if the necessary information to support their statements is inaccessible. When this foundational aspect of the argument for ADR is undermined, the entire argument collapses. Therefore, when parties express satisfaction with their ADR experiences, they are typically describing how they were personally treated, rather than the substantive outcomes.

“Making restorative justice programs available to parties who understand what the programs require, voluntarily consent to participate in them, and have the skills and personal qualities needed to make the programs work, makes sense. But it would be impossible to know all of this in advance in all but a limited number of repeat-player cases. Given this, the term “restorative justice” seems a little over the top most of the time, more a rhetorical than substantive move, designed to breathe legal gravitas into the informalism of ADR, and the lack of gravitas has been a problem with informal dispute resolution since the beginning,” said Condlin.