Restorative Justice I
Definition, History, and Overview of Restorative Justice
Punishment is one of the most dramatic manifestations of state power serving the interests of power holders. Those for whom a society punishes, and how they are punished, are key political questions, as well as indicators, related to a society’s character. There are concrete connections between punishment and politics—both domestically and globally—that must be understood in the politicization and racialization of punishment through which the state dispenses its penal power.
As indicated by the phrase paradigm shift, an understanding of restorative justice shifts your view of justice away from punishment to the sanctity of human relationships and our duty of care for each other. Punishment, as it exists today, expresses the basest desires for power through the rhetoric of vengeance using the pain of the victims of crime. Understanding, practicing, and evaluating restorative practices depends on acknowledging the differences between the restorative approach and traditional retributive justice and the long-standing practices of the powerful. An example of this paradigm shift can be seen in the very questions asked, across cultures, in retributive and restorative justice systems. The retributive system focuses on rules and law asking: What law was violated? Who did it? and What punishment do they deserve? Restorative justice focuses on three entirely different questions: What or who was harmed? What is needed to repair the harm? Whose role and responsibility is it to do this repair and prevent this harm from re-occurring?
Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense, and to collectively identify and address harms, needs, and obligations, in order to heal and make things as right as possible. (Zehr, 2005, p. 37)
The modern restorative justice movement is a revival of old ideas, and a recognition of ancient wisdom, within the modern context. But this process of figuring out how a restorative justice system will operate in relationship with Western systems of law is probably one of the biggest challenges we face. We have a very highly developed crime-control structure in America, one that many people describe as an industry, that we can’t simply ignore. For this reason, the modern restorative justice movement has really matured into a key reform movement to alter the existing criminal justice system as opposed to developing an alternative system. Read more at this link: Carolyn Boyes Watson On Restorative Justice.
There are many narratives about the origins of restorative justice theory and practices. Indigenous practitioners and trainers consistently emphasize its origins in indigenous pre-colonial history, while generally, European, British, and U.S. practitioners believe the origins are to be found in the history of their theories of justice. A study of the roots of the Western judicial system shows elements of Greek philosophy, Roman law, Judeo-Christian ideals, and European medieval approaches, along with other contributing cultures. Western societies eventually developed a two-pronged approach to justice: the civil and criminal courts. Relatively recently in our history, crime has come to be seen as harm against the state, for which the state is responsible for seeking reparation through its criminal courts.
Howard Zehr, who is considered a “father” of restorative justice (RJ) in its Euro-American incarnation points to the origin of RJ in 1974 in Canada. His writing along with others in the field was concerned with how the injured party aka victim became marginalized, with their needs often seen as an afterthought of the criminal prosecution process. This view of justice progressively became more about punishing wrongdoing, as defined by agents of power, and less about repairing the harm caused to victims. The Victims’ Rights Movement and the developments in post-colonial theory, critical race theory, and feminist theory of the 20th century were just a few of the factors responsible for the present large-scale re-examination of the Western judicial system. One of the outcomes of the re-examination process is a renewed interest in alternative means of achieving justice, fairness, and self-determination.
In Chapter 1 of the Zehr text, he distinguishes between retributive and restorative justice with the questions that are asked. He says, “The criminal justice system tends to ask three questions: What laws were broken? Who did it? What do they deserve? Everything focuses on making sure offenders get what they deserve. That is usually punishment. There is nothing for the victim because the victim isn’t really part of the criminal justice system. The crime is considered to be against the government, against the state. Restorative justice changes the questions. It asks: Who has been hurt in this situation? What are their needs? Whose obligations are they?” (2023, p 25)
Restorative justice as a concept is deeply embedded in indigenous cultures worldwide. Many indigenous cultures perceive what we would call “crime” within the context of relationships and the harm it causes to those relationships. This makes sense when you consider that indigenous cultures live in family or clan groups, and before colonialism did not have courts or prisons or even words to denote “victim” or “offender” status. In most cases, those harmed would have had lifelong associations with those causing the harm. It also stands to reason that these cultures needed ways to repair the harm, to repair the fabric of clan life. Insults or injuries would need to be addressed and resolved so the well-being of the group could again be paramount. For these reasons, cultures as diverse as the Maori, Riga, and Native American nations cope with incidents we would call crime through circle processes, peacemaking, and reconciliation processes. The elders or other respected community members assist the wronged party in determining what harm was caused and how the harm can be repaired. The individual causing the harm is not the only party expected to accept responsibility for his or her actions and work with the community to make things right; in fact; all those involved are asked to examine how they could have prevented the harm that occurred. There is no talk of exclusion because the community recognizes that each member is crucial to the well-being of the whole.
A significant difference between Navajo peacemaking and the Western model of restorative justice is that peacemaking allows self-referrals and requires no admission of guilt. Determining the history of where and how a person lost balance and harmony results in identifying the right path for the future. Healing requires that the person be actively involved in the traditional ceremony.
The Euro-American foundations of the restorative justice methods gaining some acceptance in the U.S., Canada, Europe, New Zealand, and Australia emerged from indigenous and religious models of responding to harm in ways that emphasize balance, harmony, community restitution, reconciliation, humane responses, and social justice. When applied to the criminal justice process in the U.S., restorative justice defines crime as an action that has harmed an individual or group of individuals. Some persons or party is responsible for actions leading to, or causing the harm. The person or party responsible for the harm is expected to take action to make things right with the harmed party. The harmed party, meanwhile, is expected to be able to articulate the harm that was caused to them and work with the community to accept efforts to repair the harm. The community is in place to support all parties and provide a tempering effect on the process.
Many times, in restorative justice processes, the person harmed is referred to as the victim, and the person responsible for causing the harm is called the offender. In modern restorative justice processes, the community often consists of volunteers who act as facilitators or representatives to speak to the harm the community may have experienced through the actions of the offender(s). Through a process, many times occurring in a circle, all parties involved explore the incident and jointly agree on a resolution in which the offender takes action to make things right. While offenders are expected to take responsibility for their actions and work with the community to repair harm, they are not excluded or cast out, but instead seen as whole persons possessing a range of qualities. Many times, these qualities are called upon to help them repair the harm.
Another expert in restorative justice, Carolyn Boyes-Watkins wrote:
Restorative justice focuses attention on who was affected or harmed by an action and that certainly includes the offender, who is obviously affected by what s/he has done along with the offender’s family. The whole understanding of who and what was harmed is very expansive in the restorative perspective. Similarly, the issue of responsibility, the question of who is responsible for repairing the harm and what is needed to address the harm, is also seen in very expansive terms encompassing the parties directly involved and also including the wider community-at-large. (as cited in Gavirelides, 2018, p. 23)
Restorative processes focus on more than just material harm. Emotional harms, such as a loss of trust, a feeling of being unsafe, and perhaps a changed worldview, are also addressed. Restorative justice recognizes that harm comes in many forms, and the goal is to address all of them. It does this with the active involvement of the person harmed, the individual responsible for causing the harm, and in most cases, the surrounding and affected community.
In recent years, many people have become aware of the unique wisdom in the cosmologies and spiritual practices of indigenous societies. While this native wisdom and knowledge has long been a part of human existence, its teachings have remained outside dominant educational, judicial, religious, and media systems.
The word paradigm is frequently used in connection with definitions of restorative justice because restorative justice operates under a framework that is vastly different from that of the traditional Western justice system and incorporates some of the values of indigenous practices.
The paradigm of restorative justice understands crime as a violation of people and interpersonal relationships. These relationships create obligations. As Zehr (2005) sees it, the central obligation of justice is to right a wrong that may have occurred (p. 16). This lens or view of justice is radically different from that under which traditional justice systems operate, where a crime is a violation of law and is perpetrated against the state. This different viewpoint is what Zehr means when he refers to changing lenses.
When we begin to look at justice from this radically different premise, everything that follows changes as well. Restorative justice has the potential to reach the goals of restoration, reparations, and/or reconciliation for all parties involved. When the goal is restoration, then the obligation of the offender is to participate in that restoration by attempting to make right whatever harm was caused by the criminal act. The principles of restorative justice, which we’ll discuss further in the next module, suggest that this accountability extends not only to the offender. In addition to the offender, the community or society shoulders some accountability to meet the needs of the victim and to offer a safe process where those needs may be met. Zehr (2005) proposes that justice must not only be done but must be experienced by those involved. Restorative processes take this into account and focus on inclusive situations in which the experiences and needs of the victim, offender, and community are all addressed in order to meet the central goal of repairing the harm caused by the crime.
The imposition of colonial legal jurisdiction over sovereign native nations was another manifestation of the European paradigm imposed as the only valid system of knowledge. There are a variety of theories proposed concerning the philosophical underpinnings of justice upon which the judicial system of this country is based. The development of our modern legal system is a fascinating field of study unto itself. The influences of cultures as diverse as Greek, Roman, and Judeo-Christian contributed to its development. Regardless of how exactly our current judicial system developed, it is clear that the modern Western legal system, as it is, generally operates on a retributive basis.
It is important to note that retributive justice and restorative justice do not necessarily require an “either/or” choice. During the 35 years that restorative justice has been practiced within the United States legal system, there has been a blending of approaches. Zehr (2005) refers to the idea of justice as a continuum in which specific practices may be more or less restorative. As we examine restorative justice philosophy and practices within the context of this course, the idea of a continuum is an important one to keep in mind.
The following table from the Conflict Solutions Center (2014) provides a detailed listing of the differences between retributive and restorative justice. This table, or one like it, is commonly used to present the contrasts between the two ideals—the two ends of the justice continuum. As you read through the table, think about your own perceptions of the justice system. Where do your experiences with the justice system fall along the continuum? How great a leap is it for you to begin looking at justice through the restorative lens?
|Retributive Justice||Restorative Justice|
|Crime is an act against the state, a violation of a law, an abstract idea||Crime is an act against another person and the community|
|The criminal justice system controls crime||Crime control lies primarily in the community|
|Offender accountability defined as taking punishment||Accountability defined as assuming responsibility and taking action to repair harm|
|Crime is an individual act with individual responsibility||Crime has both individual and social dimensions of responsibility|
Punishment is effective:
|Punishment alone is not effective in changing behavior and is disruptive to community harmony and good relationships|
|Victims are peripheral to the process||Victims are central to the process of resolving a crime|
|The offender is defined by deficits||The offender is defined by capacity to make reparation|
|Focus on establishing blame or guilt; on the past (did he/she do it?)||Focus on the problem-solving, on liabilities/obligations, on the future (what should be done?)|
|Emphasis on adversarial relationship||Emphasis on dialogue and negotiation|
|Imposition of pain to punish and deter/prevent||Restitution as a means of restoring both parties; goal of reconciliation/restoration|
|Community on sideline, represented abstractly by state||Community as facilitator in restorative process|
|Response focused on offender’s past behavior||Response focused on harmful consequences of offender’s behavior; emphasis is on the future|
|Dependence upon proxy professionals||Direct involvement by participants|
Restorative Justice Worldviews and Values
Author Fania Davis describes restorative justice (RJ) as: “a justice that seeks not to punish, but to heal. A justice that is not about getting even, but about getting well. A justice that seeks to transform broken lives, relationships, and communities rather than damage them further. A justice that seeks reconciliation rather than a deepening of conflict. A justice that seeks to make right the wrong rather than adding to the original wrong. A healing justice rather than punishing justice” (Davis, 2019).
Retributive Justice’s focus is on the identification and punishment of people who have broken laws. It seeks to answer what law was broken, who broke it, and how will they be punished. The US system presents itself as procedurally and retributively focused. In contrast, restorative justice principles are often summarized in five Rs: relationship, respect, responsibility, repair, and reintegration.
RJ's fundamental purpose is to repair harms committed through the sincere efforts and actions of the offender. If the victim can agree to the conditions - and those conditions are met - perhaps forgiveness comes and perhaps it does not. The important thing is that the victim and offender are clear about the harm committed, its effects, and what actions are needed to repair harm.
There are spiritual and secular models of RJ. This is why it is important that the people in a community design programs that fit their culture, language, and history. Does the massive difference in the world views of the two models make them incompatible?
There is great beauty in the variety of indigenous models of RJ. They are developed by and for the community, clan, family, and individuals involved.
In recent years, many people have become aware of the unique wisdom in the cosmologies and spiritual practices of indigenous societies. While this native wisdom always has been part of human existence, its teachings have remained outside dominant educational, juridical, religious, and media systems. Restorative justice is one such wisdom. In order to understand the variety of processes natives used in their restorative justice models, it is critical to know the history of what happened to the people during European invasions and colonization—especially how their worldviews and languages were consistently denied, demonized, and in some cases, destroyed. The traditional indigenous healing processes we study in this course focus on healing through being a good relative and a good human. This means rebuilding the ties that will send those who cause harm on a better path in their life, which in turn enriches the lives of the family, community, and the world. Harm is viewed as evidence of imbalances in the community that affect everyone. Harmful acts alert the community that there is a problem to which all must attend to prevent patterns of behaviors culminating in the harm perpetrated while addressing the root causes of harm (Terpstra, 2022).
It is important to note that the fundamental component of many early and present-day forms of indigenous models of restorative justice (RJ) and peace-making is not based on the idea of forgiveness but rather on restoring the balance in nature and relationships which includes repairing the harm done to individuals, families, clans, nations, and the natural order, the web of life and death. The concept of forgiveness in RJ was inserted later in the Christian/Mennonite models of RJ.
There are some claims to RJ origins in Māori ancient practices. Included in the Māori model are not only victims and offenders but also the parties’ families and close friends, community representatives, and sometimes, the police. All are welcome who are connected to at least one of the primary participants. They are brought together by a third party for this task (such as a respected elder). However, the facilitator does not play a role in the substantive discussion. The Māori also hold the view that decisions must involve the families and should not be taken by professionals. Both Navajo and Māori Indigenous justice processes use the notion of colonial and ‘collective responsibility’, which they link to the reasons behind causing harm. These are believed to lie not in the individual, but in a lack of balance in the person’s structural social and family environment. In their view, these problems can be addressed only by adopting a traditional collective community response. Through this, the community can achieve restoration of harmony among all those who could have helped prevent the harm.
If we believe in the interconnectedness and uniqueness of all, the practice of these beliefs could lead societies to create processes that ensure everyone’s basic human needs. These practices lead to the empowerment of self and others as an interconnected whole. This ethos of recognition and respect is embedded in the understanding that the needs of the “other” are also our needs. While restorative justice does provide frameworks that are consistent with the values and principles of conflict transformation and peacemaking, some believe that they may be incommensurate with the ideology of retributive justice (Terpstra, 2022)
The Navajo Peacemaking process begins by asking the question, “What happened?” To understand the process itself it is critical to know the history of what happened to the Navajo people, also called, the Diné. After genocide, wars, and theft of their lands, the Diné were forced to lay down their weapons and accept the laws and courts of the USA. Court is viewed as another mechanism of control and is used to punish the Navajo for being Diné (Terpstra, 2013).
These are the four main questions to be posed in the Navajo peacemaking process:
- What happened?
- Why did it happen?
- How do we go about it--(resolution and a better way)?
- How do we heal?
The Peacemaker leads the group in developing recommendations and agreements if possible. However, there is sometimes no “solution” or “resolution” (Terpstra, 2013).
Talking Circles or Circle Talks are a foundational approach to First Nations pedagogy-in-action since they provide a model for an educational activity that encourages dialogue, respect, the co-creation of learning content, and social discourse. The nuance of subtle energy created from using this respectful approach to talking with others provides a sense of communion and interconnectedness that is not often present in the common methods of communicating in the classroom. When everyone has their turn to speak, when all voices are heard in a respectful and attentive way, the learning atmosphere becomes a rich source of information, identity, and interaction.
(First Nations Pedagogy Online, 2023)
Aloha means being one with nature and this principle is the foundation of restorative justice in this indigenous form. Like the Navajo model, the Hawaiian indigenous restoration process emphasizes the human connection to all things. The facilitator asks each person to present their emotions and story and asks the person who caused harm, “Why did you do it?” These are the main questions to be asked in the Hawaiian model:
- Everyone in the circle is asked, “what could you have done to prevent this from happening.” Everyone shares the seeds of responsibility.
- All are asked to hold hands and lift heads to say an apology to the community/ ancestors/Creator for their acts of commission and omission.
- Everyone is asked: “What is to be done to prevent this from happening—what would restore you and what will you do to restore the balance?”
The facilitator meets with everyone after a period to see if everyone is doing their part.
The African concept of Ubuntu is not a criminal justice term but is a determining factor in the formation of perceptions that influence social conduct in a society. Pre-colonial African societies (and their legal systems) were family-based, linked together in clans, and ruled by chiefs who consulted senior members of the community in all matters of consequence and were obliged to always act in the interests of the collective. Decision-making was characterized by lengthy deliberation with consensus reached through negotiation rather than voting. Indigenous justice in Southern Africa, before the introduction of European concepts of law, was determined by groups of people who included both the alleged offender as well as the victim. There’ve been, of late, calls for some aspects of traditional justice, based on ubuntu, to be reintroduced into the mainline criminal justice system of South Africa.
Across indigenous nations, there are words for the relationships between those causing harm and the group harmed. The Navajo word is "k’e," the Lakota term is "tiospaye," and the Zulu word is "ubuntu," all of which describe the interdependent relationship of the individual to the group and the group to the individual. These values are nonexistent in Western culture or forms of justice and law. Western law is retributive and indigenous law is based on healing. Attempting to make an integrationist or assimilative restorative justice process for indigenous people is highly problematic. Indigenous people have a right to sovereignty and to officiate their own healing and peacemaking processes.
In indigenous justice (restorative) community well-being is emphasized—this is a whole community process based in indigenous philosophy. Healing requires that the person be actively involved in the traditional ceremonies prescribed. The Ojibway healing process developed in the Hollow Water community of Lake Winnipeg created a 13-step approach following disclosure of harm, requiring all involved in the offense or personally touched by it to sign an agreement to make changes in their behaviors in relationships, which often take years. Because the Ojibway are under US federal jurisdiction, they are required to conduct this process in conjunction with the US court system. After the agreement is completed, a cleansing ceremony is held to mark a new beginning for all involved. For more on the Hollow Water community see: The Four Circles of Hollow Water.
Ever since Indigenous peoples were colonized, their cultures, beliefs, and way of life were perceived as inferior by the settlers. As a result of colonialism, the Western criminal justice system became widespread and the main scheme of punishment in different parts of the world, including Canada (McGuire & Palys, 2020, p. 67). The imposition of colonial legal jurisdiction over sovereign native nations was a manifestation of the European supremacist paradigm that claimed to be the only valid system of knowledge. European expansionism in its various forms established philosophical constructs using white patriarchal supremacy. Christianity cojoined with imperialism was used as justification for invasion, expropriation, genocide, slavery, colonialism, and settlement. Those European men with power and land created civil, moral, and juridical systems that lifted them above other races, creeds, and all women as conquerors, colonizers, and slave masters displacing those who were not “the same as” them (Terpstra, 2013).
For natives, genocide, dispossession of lands, and removal to reserves in the US, Canadian, Australian, and New Zealand legal systems was and still is a historical trauma with damaging consequences. The truth of the genocides of native people sometimes referred to as the Indigenous Holocaust, is disguised in elementary school texts as “discovery” and conquest. Extermination was and is the natives’ consistent reality from Wounded Knee to the 500-plus indigenous women and children missing in Canada today. Hence, the harm continues, and the natives live in a chronic traumatized state.
One of the most important concepts in indigenous RJ is that of decolonizing. Decolonizing through national sovereignty. Decolonizing by returning to traditional worldviews, languages, and rituals and most importantly decolonizing the mind and spirit from the lessons which taught them to hate themselves as savages and criminals in their own land. Traditional native belief systems continue despite over 500 years of colonialism, postcolonialism, and neocolonialism. Their worldview accepts the importance of a spirit in each human, animal, and plant. Living the traditional life for a native means following the traditional laws and codes of behavior that were set down through their creation stories and oral history.