Restorative justice is not a new concept.  Since the beginning of civilization, it has been around and is commonly used in other nations for seeking justice.  It is based upon the belief that achieving justice requires repairing harm. The process often involves restorative conferences — face to face dialogue between the people who were harmed and the ones responsible for the damage. The goal is to agree on how to best repair the harm, direct accountability, and meet the needs created by the crime.

Our heart’s desire for the United States’ criminal justice system is to keep people on the outside safe and change those on the inside for the better.  That is simple enough.  However, we know all too well this yearning goes unfulfilled. The majority of those entering our criminal justice system will be harmed more than helped, and at least sixty percent of them will re-offend within just a few years; so much for keeping people on the outside from harm.  Eh?   Change is needed, and restorative justice could be the solution.

Restorative Justice is not for all crimes.

Most would agree that restorative justice is not for all crimes. A two-track correctional system is needed. Indeed, a crime that is heinous in nature requires a disciplinary, retributive approach.  This holds true for offenders who are high risk and demonstrate a pattern of criminal behavior, engage in serious misconduct, and have histories of violence.  However, for non-heinous criminals, a restorative track seems plausible for keeping our communities safer and reforming our offenders, not to mention ending our nation’s mass incarceration problem.

Justice for All.

Realistically speaking, what is it we primarily desire when we are hurt by another person?  Mainly we want the offender to look us in the eye, acknowledge and take ownership for the offense, and offer to make restitution.  We also desire the opportunity to explain how their crime has affected our life and perhaps those whom we love and care for.  Often we want answers from the offender.  We want to know why the offense occurred, how we can protect ourselves better, and if we can trust this person again.  Most importantly, we want to see them really get it and show genuine remorse for their actions.

However, the things we generally desire from offenders tend to go unaddressed by our current criminal justice system.  Here are some examples. In most states, victims and offenders are not permitted to have contact of any kind outside of the courtroom. Also, the process itself deters collaboration. By simply telling offenders from the onset they have the right to remain silent, anything they say can be used against them in a court of law. I am not opining for doing away with the Miranda warning; personally, I think it is a good thing and based on the Fifth Amendment to the Constitution. However, in some ways, it has set a precedent for procedural taciturnity that can work against collaborative justice initiatives needed for healing the hurts of lesser crimes.

Why Restorative Justice is difficult to implement.

Studies show that restorative justice is productive in lowering recidivism rates and keeping people safer.  So why is it not the basis for our criminal justice system?  Many states have adopted legislation that supports restorative justice in their criminal cases, but the court and correctional officials rarely put it into practice. Perhaps this is due impart to restorative justice being challenging to work and requires community participation.  It necessitates face-to-face dialogue about crime, conflict, pain, and suffering from the people who make us feel uncomfortable or have inflicted harm.  The need to get involved and the fear of being hurt make the current justice system an easy way out, not just for the justice officials but all of us.   It is easy to blame the politicians and the various components of the criminal justice system for the problem, but in reality, it is a “We the People” problem.  Until we are willing to face those who hurt us or those we have hurt, we simply perpetuate a broken system of justice.

Forgiveness must become a part of the criminal justice procedure and can go a long way in transforming the criminal justice system. Through forgiving, anger subsides towards wrongdoers and events, and we move beyond blaming others for our unhappiness.  In today’s criminal justice system, the court represents the State’s interest, focusing on what laws have been broken, who did it, and what punishment they deserve. On the other hand, the defense assures the accused’s Constitutional rights are not violated in the process, presuming their innocence until proven guilty beyond the shadow of a doubt by the State. However, the victim and the communities impacted by the crimes are not represented; their hurts are not discussed, wholeness is not sought, and preventative measures are not strategized.  Studies show that victim satisfaction increases and repeat offending decreases through restorative justice; it is a system that works!

Restorative Justice offers rehabilitation.

Without restorative justice, the criminal justice system will not come full circle by keeping people safe on the outside and changing those on the inside for the better. Victims and impacted communities will feel isolated from the criminal justice process nor will they achieve wholeness.  Forgiveness will not be sought or offered, and the system will continue in perpetuity. A system designed for punishment is shaped through punishment and remains fundamentally rooted in the ideals directly connected to punishment. Such a system will never get around to rehabilitating offenders or restoring victims and communities reeling from crime.  As a nation, we need restorative justice for all.  Together we can make it happen!

  by Adrian Halverstadt, Chair, Criminal Justice, Barclay College Online
Dr. Halverstadt has worked with law enforcement, serving as a chaplain, counselor, and life skills coordinator; the court system, assisting in inmate reintegration, rehabilitation, and restorative justice resources; and corrections as a prison chaplain, inmate educator, and life skills coordinator.

Barclay College Online now offers a 4-year, fully accredited degree in Criminal Justice. Classes start January 2022. For more information and to apply: https://www.barclaycollege.edu/academics/online/criminal-justice/

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References:

Lerman, David. (2000),  Forgiveness in the Criminal Justice System: If it Belongs, then Why is it so Hard to Find?,     Fordham.  Retrieved from https://ir.lawnet.fordham.edu/ulj/vol27/iss5/19

Marshall, (1998). Restorative Justice: An overview.  Retrieved from https://www.ojp.gov/ncjrs/virtual-library/abstracts/restorative-justice-overview

New York Times. (January 4, 2013)  Can forgiveness play a role in criminal justice?  Retrieved from                https://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a-role-in- criminal-justice.html

Van Ness, Daniel. (2015), Restoring Justice. New York: Routledge