Restorative Justice

Nega Jibat
 What is Restorative Justice?
• “Restorative Justice” is a systematic formal legal
response to crime victimization that emphasizes
healing the injuries that resulted from the crime and
affected the victims, offenders and communities.

• RJ is a process to involve, to the extent possible,

those who have a stake in a specific offence and
to collectively identify and address harms,
needs and obligations, in order to heal and put
things as right as possible. (Howard Zehr’s ” The Little
Book of Restorative Justice”, 2002)
 …What is RJ

• This process is a departure from the traditional

retributive form of dealing with criminals and
victims which generally perpetuates the conflict
which resulted in the original crime.

• Restorative Justice: Healing the effects of crime

• RJ is a new movement in the fields of

victimology and criminology.
 … What is RJ?

• Acknowledging that crime causes injury to people and

communities, it insists that justice repair those injuries and
that the parties be permitted to participate in that process.

• RJ programs, therefore, enable the victim, the offender and

affected members of the community to be directly involved
in responding to the crime.

• They become central to the CJ process, with governmental

and legal professionals serving as facilitators of a system
that aims at offender accountability, reparation to the victim
and full participation by the victim, offender and
community.
• The restorative process of involving all parties – often in
face-to-face meetings – is a powerful way of addressing
not only the material and physical injuries caused by
crime, but the social, psychological and relational injuries
as well.

• When a party is not able, or does not want, to

participate in such a meeting, other approaches can be
taken to achieve the restorative outcome of repairing
the harm.

• In addressing offender accountability these

approaches can include restitution, community service
and other reparative sentences.
• In addressing victim and offender reintegration they can
include material, emotional and spiritual support and
assistance.

• A definition of RJ that emphasizes the importance of

both restorative processes and outcomes is the
following:

• Restorative justice is a theory of justice that

emphasizes repairing the harm caused or revealed
by criminal behaviour. It is best accomplished
through cooperative processes that include all
stakeholders.
• RJ is a response to crime that focuses on restoring the
losses suffered by the victims, holding the offenders
accountable for the harm they have caused, and building
peace with the communities.

• It is a different way of thinking about crime and our

response to crime. It focuses on the harm caused by
the crime: repairing the harm done to the victims and
reducing future harm by preventing crime.

• It is achieved through a co-operative efforts by both

government and the communities. It requires offenders
to take responsibilities for their actions and for the
crime that they have caused.
• Restorative justice works!
– It is cost-effective moneywise and human suffering wise; for victims –
offenders, their family and friends – local community - and society at
large.

• Sceptisism is to be expected from our coopertaing partners

within the justice sector– but this sceptisism will decrease
as good results are documented and repeated.

• Time, efforts and patience–> succeess

• Huge task of communication, information and dialogue

across sectors and towards the public.
 Benefits of RJ
• RJ is different from contemporary CJ in several ways:

• It views criminal acts more comprehensively: rather than

defining crime as law-breaking, it recognizes that offenders harm
victims.

• It involves more parties: rather than giving key roles to

government and offender, it involves the victim and community. It
recognizes the importance of community involvement and initiative
rather than leaving the problem of crime to the government.

• It measures successes differently: rather than measuring how

much punishment has been inflicted, it measures how much harm has
been repaired or prevented.
 Restorative vs. Retributive Justice

• Restorative justice is not retributive justice.

• Retributive justice is a theory of justice that

considers punishment, if proportionate, is a morally
acceptable response to crime, by providing
satisfaction and psychological benefits to the victim,
the offender and society.

• "Justice has been done when the wrong-doer has

been sufficiently punished."
• RJ is an approach to justice that focuses on the needs
of victims and offenders, instead of the need to satisfy
the rules of law through punishments.

• Victims are given an active role in a dispute and

offenders are encouraged to take responsibility for
their actions, "to repair the harm they've done—by
apologizing, returning stolen money, or doing community
service".

• RJ is based on a theory of justice that focuses on crime

and wrong doing as acted against the individual or
community rather than authorities.
 Retributive Justice
• Misbehavior/offenses are
committed against authorities
and are violations of rules of
law or policies.
• Offender is accountable to
authorities for the
misbehavior or offense.
• Accountability is equated
with suffering. If offenders are
made to suffer enough (i.e.
expulsion or suspension) they
have been held accountable.
Restorative Justice
• Misbehavior/offenses are
defined as acts against victims
and the community, which
violate people & community
trust.
• Offender is accountable to the
victim and the community.
• Accountability is defined as
taking responsibility for
behaviors and repairing the
harm resulting from those
behaviors. Success is measured
by how much reparation was
achieved.
 Retributive Justice Restorative justice

• Victims are not the • Victims and community are directly

primary focus of the involved and play a key role in response
process. to misbehavior/offenses.

• Offenders are defined by • Offenders are defined by their capacity

to take responsibility for their actions
the misbehavior/offense.
and change behavior. Victims are
Victim is defined by
defined by losses and capacity to
material and participate in the process for recovering
psychological loss. losses and healing.

• Misbehavior/offenses • Misbehavior/offenses have both

are the result of individual and social dimensions and
individual choice with are the result of individual choice and
individual responsibility. the conditions that lead to the behavior.
 Problem

Retributive Restorative
• defined narrowly, • defined relationally, as a
abstractly, a legal violation of people
infraction

• only legal variables • overall context relevant

relevant

• state as victim • people as victims

 Actors (the who)
Restorative
Retributive

• state (active) and • victim and offender

offender (passive) primary, along with
community and state
 Process (the how)
Restorative
Retributive

• participatory, maximizing
• adversarial,
information, dialogue and
authoritarian, technical,
mutual agreement
impersonal

• focus = needs and

• focus = guilt/blame
obligations

• "neutralizing strategies"
• empathy and
encouraged
responsibility encouraged
 Outcome

Restorative
Retributive

• pain, suffering • making things right by

identifying needs and
obligations; healing;
problem-solving

• harm by offender • harm by offender

balanced by harm to balanced by making right
offender
• oriented to future
• oriented to past
• At the risk of oversimplifying, the RJ and the traditional
justice approach --Retributive J. – are summarized as
follows:
Retributive Justice
• Crime - is a violation of the law, and the state is the
victim.
• The aim of justice - is to establish blame (guilt) and
administer pain (punishment).
• The process of justice - is a conflict between
adversaries in which the offender is pitted against
state rules, intentions outweigh outcomes and one
side wins while the other loses.
Restorative Justice
• Crime -is a violation or harm to people and relationships.
• The aim of justice - is to identify obligations, to meet needs
and to promote healing.
• The process of justice - involves victims, offenders and the
community in an effort to identify obligations and solutions,
maximizing the exchange of information (dialogue, mutual
agreement) between them.

• To put RJ in its simplest form: crime violates people and

violations create obligations. Justice should involve
victims, offenders and community members in a search
to identify needs and obligations, so as to promote
healing among the parties involved.
 Three pillars of restorative justice
Harms and needs Obligations Engagement
 Principles of crime as Harm, Obligations and
Engagement
• RJ is not a matter of adding some new programs
or tinkering with old ones. Instead, it involves a
reorientation of how we think about crime and
justice.
• Two fundamental ideas: RJ is harm-focused, and
it promotes the engagement of an enlarged set
of stakeholders.
• The principle of engagement suggests that the
primary parties affected by crime -- victims,
offenders, members of the community -- are
given significant roles in the justice.
• RJ. views crime, first of all, as harm done to people and
communities.

• The traditional legal system, with its focus on rules and

laws, often loses sight of this reality; consequently, it
makes victims, at best, a secondary concern of justice.

• A harm focus, however, implies a central concern for

victims' needs and roles.

• RJ. begins with a concern for victims and how to meet

their needs, for repairing the harm as much as possible,
both concretely and symbolically.
• A focus on harm also implies an emphasis on offender
accountability and responsibility -- in concrete, not abstract,
terms.

• Too often we have thought of accountability as punishment -- pain

administered to offenders for the pain they have caused.
Unfortunately, this often is irrelevant or even counterproductive
to real accountability.

• Little in the justice process encourages offenders to understand

the consequences of their actions or to empathize with victims.
On the contrary, the adversarial game requires offenders to look
out for themselves.

• Wrong creates obligations; taking responsibility for those

obligations is the beginning of genuine accountability.
 Restorative Justice Principles: summary

• Crime is a violation of people and of

interpersonal relationships.

• Violations create obligations.

• The central obligation is to put right the wrongs.

 Five Principles of Restorative Justice

Restorative justice...
1. Focuses on harms and consequent needs.
• (victims', but also communities' and offenders')
2. Addresses obligations resulting from those harms.
• (offenders' but also families', communities' and
society's)
3. Uses inclusive, collaborative processes.
4. Involves those with a legitimate stake in the situation.
• (victims, offenders, families, community members,
society)
5. Seeks to put right the wrongs.
 Values of Restorative Justice
• The principles of RJ reflect a number of underlying
values. Too often these values are unstated and
taken for granted. They include:
• The human honor
- respect
• Vision of Interconnectedness
- The primary elements of RJ - harm and need, obligation,
taking responsibility, participation, reintegration - derive from
this vision.
• Appreciation for “particularity”
– recognition of diversity
 Values of Restorative Justice
• Encounter- creates opportunities for victims, offenders
and community members who want to meet to do so to
discuss the crime and aftermath.

• Amends – Expect offenders to take steps to repair the

harm they have caused.

• Reintegration – seek to restore victims and offenders as

whole contributing members of society.

• Inclusion- provides opportunities for parties involved in a

specific crime to participate in its resolution.
 The goals of restorative justice

Restorative justice programs aim to...

• put key decisions into the hands of those most
affected by crime,

• make justice more healing and ideally, more

transformative, and

• reduce the likelihood of future offenses.

 Guiding questions of RJ
• Who has been hurt?

• What are their needs?

• Whose obligations are these?

• Who has a stake in this situation?

• What is the appropriate process to involve

stakeholders in an effort to put things right?
 Key questions in RJ
• What happened?

• What were you thinking?

• What were you feeling?

• Who has been affected?

• What do you need to do now?

 RJ SIGNPOSTS
I. Focus on the harms of wrongdoing more than the
rules that have been broken;
II. Show equal concern and commitment to victims and
offenders, involving both in the process of justice;
III. Work toward the restoration of victims, empowering
them and responding to their needs as they see them;
IV. Support offenders while encouraging them to
understand, accept and carry out their obligations;
V. Recognize that while obligations may be difficult for
offenders, they should not be intended as harms and
they must be achievable;
VI. Provide opportunities for dialogue, direct or indirect,
between victims and offenders as appropriate;
VII. Involve and empower the affected community
through the justice process, and increase its capacity to
recognize and respond to community bases of crime;
VIII. Encourage collaboration and reintegration,
rather than coercion and isolation;
IX. Give attention to the unintended consequences of
our actions and programs; and
X. Show respect to all parties, including victims,
offenders and justice colleagues.
Harry Mika and Howard Zehr, 1997
 Restorative Justice Practices
• Restorative Justice is:
- Concept,
- Orientation
- theory/perspective,
- approach/model,
- movement,
- philosophy,
- practice
 Models of practices differ on the “who” and “how”

• Victim Offender Conferences/mediation

• Conferencing (family, community, …)/meetings
• Circles - Red Indians
- Peacemaking Circles
- Sentencing circles
- Healing circles
- Circles to deal with workplace conflicts,
- Circles designed as forms of community dialogue.
 Community services
 Models differ on their goals

• Alternative or diversionary programs

• Healing or therapeutic programs

• Transitional programs
 A restorative continuum
• Degrees of RJ practices:

• Fully Restorative
• Mostly Restorative
• Partially Restorative
• Potentially Restorative
• Pseudo or Non-Restorative
 Key questions include:

• Does it address harms, needs and causes?

• Is it adequately victim-oriented?
• Are offenders encouraged to take responsibility?
• Are all relevant stakeholders involved?
• Is there an opportunity for dialogue &
participatory decision making?
• Is it respectful to all parties?
 Is it either/ or?
• Retributive justice vs. Restorative Justice?

• Criminal Justice vs. Restorative Justice?

Restorative justice is a river

 Restorative justice is not....
• primarily about forgiveness or reconciliation.
• mediation.
• primarily designed to reduce recidivism.
• a particular program or a blueprint.
• primarily intended for “minor” offenses or first-time
offenders.
• a new or North American development.
• necessarily the opposite of retribution
• RJ is neither a panacea nor necessarily a replacement
for the legal system
 Programs included in restorative justice
• Victim-offender mediation
• The objective is to offer an arena for dialogue and assist the parties in
their process to find common functional solutions to their conflict.
• VOMs involve the meeting between a victim and offender mediated
by a trained mediator. With the assistance of the mediator, the
victim and offender begin to resolve the conflict and to construct
their own approach to achieving justice in the face of their particular
crime.
• Mediators/facilitators role is to prepare for the dialogue, plan a
structure for the meeting, identify who needs to be there to
participate. Conduct pre-meetings with all parties, raise questions
for reflection during the meeting, summarize the parties viewpoints
along the way, assist in sorting out what issues needs to be
addressed in order for the parties to achieve a peaceful constructive
solution to their conflict.
• Conferencing: similar to the victim-offender mediation
program, this involves the victim and offender in an
extended conversation about the crime and its
consequences. Also include the participation of families,
community support groups, police, social welfare
officials, and attorneys in addition to the victim and
offender.

• Circles: pattern of arrangement and participation.

• Community services: community service is used to

repair the harm done to the community. It provides an
opportunity for the offender to see first-hand the
indicator injuries caused by his/her offense.
 Victim, Offender & Community Meetings

• Meetings between victims, their offenders, and

members of the affected community are important
ways to address the relational dimension of crime
and justice.

• It is accepted that the following three methods are

hallmarks of RJ. Their goals are also defined.
• Each requires that the offender admit responsibility
for the offence.
• Each is limited to parties who volunteer to
participate.
 Victim-offender mediation

This is a process that provides an interested victim the

opportunity to meet his offender in a safe and structured
setting, engaging in a discussion of the crime with the
assistance of a trained mediator.

• The goals of victim-offender mediation include:

- permitting victims to meet their offenders on a voluntary
basis,
- encouraging the offender to learn about the crime's impact
& to take responsibility for the resulting harm, and
- providing victim and offender the opportunity to develop a
plan that addresses the harm.
• There are more than 300 victim offender mediation
programs in North America, and over 500 in Europe.

• Research on such programs has found higher

satisfaction among victims and offenders who
participated in mediation, lower fear among victims,
a greater likelihood that the offender will complete a
restitution obligation, and fewer offenders
committing new offences, than among those who
went through the normal court process.
 Family or Community Group Conferencing

• This process brings together the victim, offender, and family, friends
and key supporters of both in deciding how to address the
aftermath of the crime.

• The goals of conferencing include:

- giving the victim an opportunity to be directly involved in
responding to the crime,
- increasing the offender's awareness of the impact of his or her
behaviour and providing an opportunity to take responsibility for it,
- engaging the offenders' support system for making amends and
shaping the offender's future behaviour, and
- allowing the offender and the victim to connect to key
community support.
• Conferencing was adapted from Maori traditional
practices in New Zealand, where it is operated out of the
social services department, and was further modified in
Australia for use by police.

• It is now in use in North America, Europe, and

southern Africa in one of those two forms. It has been
used with juvenile offenders (most New Zealand juvenile
cases are handled by conferencing) and with adult offenders.

• Research on such programs shows very high degrees

of satisfaction by victims and offenders with the
process and results.
 Peacemaking or Sentencing Circles
• This is a process designed to develop consensus among
community members, victims, victim supporters, offenders,
offender supporters, judges, prosecutors, defence counsel,
police and court workers on an appropriate sentencing plan
that addresses the concerns of all interested parties.
• The goals of circles include:
- promoting healing of all affected parties, giving the offender the
opportunity to make amend, giving victims, offenders, family
members and communities a voice and shared responsibility in
finding constructive resolutions,
- addressing underlying causes of criminal behaviour, and
- building a sense of community around shared community values.
• Circles were adapted from certain Native American traditional
practices, and are being used throughout North America.
 Repairing the Harm Caused by Crime

• Each of the hallmark RJ processes -- victim offender

mediation, community or family group conferencing,
and peacemaking or sentencing circles -- ends with
an agreement on how the offender will make
amends for the harm caused by the crime.

• Two traditional criminal justice sanctions are

used in restorative responses to crime:
restitution and community service.
 Restitution
• Restitution is the payment by an offender of a sum of money to
compensate the victim for the financial losses caused by the crime.
• It is justified in a restorative perspective as a method of holding
offenders accountable for their wrongdoing, and as a method of
repairing the victim's injury.
• Restitution can be determined in the course of mediation, conferencing
or circles; it can also be ordered by a judge. In other words, it is a
potentially restorative outcome that may result from either a
restorative or a conventional process.

• Studies have shown that restitution increases victim satisfaction with

the justice process. Some studies have shown that the use of restitution
was associated with reductions in recidivism. Other studies have shown
that when restitution determined during mediation, it is more likely to
actually be paid than when it results from court order alone.
 Community Services
• Community service is work performed by an offender for the benefit
of the community. It is justified in a restorative perspective as a
method of addressing the harm experienced by communities when
a crime occurs. However, it can be used instead for retributive
reasons or as a means of rehabilitating the offender.
• What distinguishes its use as a restorative response is the attention
given to identifying the particular harm suffered by the community
as a result of the offender's crime, and the effort to ensure that the
offender's community service repairs that particular harm.
• So, for example, offenders who put graffiti on buildings in a
neighbourhood can be given the community service of removing
graffiti from buildings in that neighbourhood.
• Community service programs in Africa build on customary
processes for making amends, thus addressing community concerns
and easing the offender's reintegration into the community.
 Restorative Justice around the World

• Although RJ is a phenomenon of recent years, its

influence has spread around the world at a
remarkable speed.

• We can track international development in two

basic categories:
- innovation by countries in their use of RJ, and
- integration by countries of restorative ideas
into their justice systems.
 Innovation
The following are examples of innovative restorative practices:
• Indigenous or customary practices are being adapted for use
in the CJS. Examples of this include conferencing and circles.

• Victim-offender encounters are taking place inside prisons in

Europe and North America. In some instances ,this involves
victims meeting with their offenders in a kind of "post
sentencing mediation;" it is even used in this way on death
row in Texas. In other instances the meetings involve groups of
unrelated victims and offenders. These "surrogate"
encounters may be used because the actual victim or offender
is unknown or unavailable, or as a preparatory step toward a
meeting of the person with the actual victim or offender.
• "Circles of Support" in Canada work with serious sexual
offenders (often guilty of paedophilia) released into fearful
communities at the conclusion of their sentences.

• The program increases safety of the public by establishing a

reintegration plan with the offender, by regularly monitoring
the behaviour of the offender, and by ensuring that
community resources needed by the offender are made
available.

• It ensures the safety of the offender by offering a forum for

community members to voice their concerns, by intervening
with community members when necessary, and by working
with the police and other authorities to provide protection
and services as needed.
• Unique prison regimes have developed in Latin America and
elsewhere in which prisoners volunteer to stay at facilities run
largely by volunteers and the prisoners. The regimes establish a
particular spiritual or cultural ethos that involves learning through
example and apprenticeship.

• Victim-offender-community meetings are being done at many

phases of the justice process. They are run by police prior to
charge, by probation officers and on occasion by parole officers in
Canada. This is in addition to the rich tradition of NGO provision
of community-based victim-offender-community meetings.

• Restorative processes are being used to address conflict between

citizens and the government. Examples include the Truth and
Reconciliation Commission in South Africa and the Treaty of Waitangi
Commission in New Zealand.
 Integration
• There are also signs that restorative approaches are joining the mainstream of
justice around the world.
• Legislative action has reduced legal or systemic barriers to the use of restorative
programs, created legal inducements for using restorative programs, guided and
structured restorative programs, and protected the rights of offenders and
victims.

• Funding and staff for programs is expanding. Belgium, for example, has adopted
a "Global Plan" to fight unemployment and to change certain aspects of criminal
justice. Municipalities receive funding for program staff if they agree to help
carry out certain penal sanctions and measures such as police-based mediation.

• Jurisdiction-wide planning is incorporating restorative principles in a systemic

framework. This has been done at the state and provincial level, and on a
national level in some countries. The purpose of the exercise is to involve
criminal justice professionals and members of the community in a process that
leads to a plan for implementation and expansion of restorative approaches.
• The number of restorative programs is growing. There are
more than 500 mediation programs and projects in Europe,
and over 300 in the US. A Canadian survey of restorative
programs and projects in that country resulted in over 100
listings.

• Intergovernmental bodies are taking note of restorative

justice. In 1999 the Committee of Ministers of the Council of
Europe adopted a recommendation on the use of mediation in
penal matters. The UN's International Handbook on Justice for
Victims notes that "the framework for restorative justice
involves the offender, the victim, and the entire community in
efforts to create a balanced approach that is offender-directed
and, at the same time, victim-centred. Victim compensation
has become a key feature of restorative justice in many
developed countries."
 National Mediation Services (NMS): Norway
• The NMS is responsible for professional guidance and
training of the mediators; systems to ensure quality.
Values and Principles
• A face to face, concrete and direct sharing of
experiences
• Voluntarily
• Direct participation ( no lawyers/advocates present)
• A no blame approach
• Inclusion and empowerment of the participants
• Reintegration of victims and offenders
• Building safe communities
 Methods used by NMS to facilitate meetings

• Small and big meetings

• Mediation and conferencing circles
• Preparational meetings!

• The number of participants and the structure of

the meeting/process differs a bit, but the basic
principles for dialogue are the same.
 Policymaking – implementation – NMS history
The first mediation pilot project took place in a small rural
municipality from 1981 – 1983
• The project was a child care measure
• The Ministry of Social Affairs was responsible
The Director General of Public Prosecutions took active
part
– Circular letters to all prosecutors on how to cooperate
with NMS
– Identified types of penal cases suitable for mediation
– Proposed to legislate victim-offender mediation
 Policymaking – implementation – NMS history

Law on mediation passed 15th of March 1991

– Unanimously passed by Parliament
– Open framework law: both penal & civil cases – no
age limits – free of charge
– Placed under Ministry of Justice

• Implementation 1992-94 – nationwide

– Fully state run organisation from 01.01.2004
Challenges in the Future of Restorative Justice

• Problems of Definition

• Problems of Institutionalization

• Problems of Displacement

• Problems of Relevance