A Brief History of Restorative Justice
Restorative justice embraces themes important to the victims’ rights movement, especially notifica- tion, empowerment, direct involvement, offender accountability, and receiving restitution. This emerging challenge to the prevailing punitive par- adigm incorporates some traditions that helped blunt crime’s negative repercussions centuries ago, before the state asserted its authority to dom- inate the justice process. In the distant past, legal systems were victim-focused and restitution- oriented. Detailed lists specified how much a wrongdoer had to pay an injured party for each kind of wound or loss.
But priorities shifted dramatically in most soci- eties when the upper class discovered that the legal apparatus could be used to control the popu- lace. The government symbolically displaced the wounded person as the injured party, and the courts were transformed from a forum to settle disputes between specific individuals into an arena for ritualized combat between representa- tives of the state and of the accused. If the prose- cution succeeded, the state inflicted pain upon its vanquished opponents in order to teach them not to break the law again (specific deterrence) and to make negative examples of them to serve as a warning to others (general deterrence). Later, pris- ons were invented to serve these purposes as well as to take troublemakers out of circulation to pro- tect the public (incapacitation) and to force mal- adjusted people to undergo compulsory treatment (rehabilitation).
In addition to the suffering caused by the dep- rivation of liberty and the imposition of harsh con- ditions (retribution), the government often extracted a fine or seized property from convicts, but it never shared the spoils with victims. The
overriding concern of the authorities was to impose the appropriate punishment, not to help rebuild the victim’s emotional and economic well-being. This paradigm shift to retributive justice resulted in a process that was state-centered, offender-focused, and punishment-oriented rather than injury- centered, victim-focused, and reparation-oriented (see Sullivan and Tifft, 2001).
Centuries later, reformers in a worldwide social movement are promoting another paradigm shift by working to revive the ancient insight that achieving genuine justice requires that something be done for the victim and not simply to the offender. Street crimes—acts of interpersonal vio- lence and theft—are viewed as conflicts between individuals more than as affronts to abstractions such as “society’s norms” or the “state’s authority” or “law and order” (see Christie, 1977).
The differences between retributive justice and restorative justice are highlighted in Table 13.1.
Starting in the 1970s, innovative activists began to promote dispute resolution as a way to resolve conflicts that involved shared responsibility. They argued that calling the police, pressing charges, prosecuting in court, and seeking vindication through conviction were inappropriate for handling minor violations of the law, especially if they stemmed from ongoing relationships in which each party did something to antagonize, provoke, and harm the other.
In addition, proponents of dispute resolution argued that the adversary system underlying both criminal and civil proceedings is essentially a zero- sum game. At each stage, one party gains points at the expense of the other. Strict rules of evidence may prevent the disputants and witnesses from tell- ing the whole story. Both sides are preoccupied with issues of blame, guilt, and liability. At the end of the contest, there must always be a winner and a loser. The victorious side is pleased with the outcome, while the defeated side is angry and dis- appointed. The two parties may leave court just as they arrived, locked in conflict and seething with hostility, and sometimes even more alienated, bit- ter, and polarized than at the outset (Wright, 1985, 1989; and Cooper, 2009).
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The development of methods of alternative dispute resolution (ADR) around the globe stim- ulated interest in reconciliation programs within the United States. Mediation lies at the center of a continuum bounded by conciliation and arbitration.
It requires direct negotiations between dispu- tants with a neutral person, a mediator, who helps the feuding parties arrive at a mutually acceptable compromise by promoting discussion, soliciting viewpoints, and discovering areas of common inter- est. Conciliation simply requires a go-between to facilitate the flow of information from one dispu- tant to another. In arbitration, a neutral individual is called in to break a deadlock. The arbitrator plays an active role as fact finder and then, after hearing presentations from both sides, imposes a fair, final, and legally binding decision. Using ADR was viewed as preferable to adjudication because it could lead to a compromise settlement that might satisfy both sides and resolve their dispute with some degree of finality.
These alternative ways of settling conflicts were made available at places called multidoor court- houses or neighborhood justice centers. Dispu- tants took their cases to an intake/diagnosis/referral unit, where a screening specialist decided on the most appropriate method of resolving the matter: conciliation, mediation, arbitration, or adjudication within the criminal justice system.
At neighborhood justice centers practicing ADR techniques, hearings were scheduled at the
convenience of the participants, not the staff. The use of private attorneys was discouraged. The rules governing the introduction of evidence were min- imized. Witnesses were not sworn in. Mediators did not wear robes or sit above and apart from the others. Nontechnical language was used, and only limited records of the proceedings were kept. This moot model of informal justice avoided the constraints of a guilty/innocent, wrong/right, and pin-the-blame/deny-responsibility framework. With the mediator acting as a referee, the dispu- tants educated each other by presenting their own versions of their conflict. The intent was to look to the future rather than to dwell on the past. The ultimate goals were to reconcile the estranged parties and repair rifts within their community (Prison Research, 1976; Roehl and Ray, 1986; and Wright, 1991).
Neighborhood justice centers were not sought by activists when the victims’ rights movement first emerged during the 1970s. Originally, the idea of relying on informal negotiations to settle criminal matters conjured up the unfavorable image of an unwilling, trembling victim being forced to shake hands with a smirking, unrepentant offender. The impetus for developing this additional forum came from other constituencies.
Attempting to streamline the judicial process, court administrators sought ways to remove the minor criminal cases that clogged their calendars. Judges, including the justices of the Supreme
T A B L E 13.1 Comparing and Contrasting Retributive and Restorative Justice
Issue Retributive Justice Restorative Justice
Nature of crime A violation of the state’s rules An act that harms specific individuals Jurisdiction Handled by the criminal justice system’s agencies and
officials Resolved by community members
Goals Conviction and punishment for the purpose of retri- bution, deterrence, and incapacitation
Recovery of victim, rehabilitation of offender, resto- ration of harmony
Methods Adversary system, establish guilt according to strict rules of evidence
Mediation, negotiation, frank discussion, consensus, restitution
Victim’s role Limited to complainant and witness for the prosecution
Central figure, direct participant
Offender’s role Must accept blame, suffer consequences Must accept responsibility, make amends Orientation Past wrongful acts, prevention via fear of
consequences Past harm and future recovery, rehabilitation
SOURCES: Adapted from OJP, 1997; Crowe, 1998; and Zehr, 1998.
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Court, encouraged experiments in conflict resolu- tion so that settling disputes in criminal and civil court at great public expense would become a last resort. Police and prosecutors endorsed weeding out what they considered “junk” cases from their workloads. From their viewpoints, too many peo- ple wasted the time of public agencies trying to resolve private matters. They argued that the com- plex machinery of criminal justice should be reserved for “real” crimes involving large financial losses and serious injuries inflicted by strangers. The limited resources of the court system should not be used to attempt to settle petty squabbles between people with prior relationships. Prosecutors com- plained that a great many complainants decided to drop charges or failed to appear in court to testify when the defendants were family members, lovers, former friends, classmates, fellow workers, or neighbors. Anticipating that these complainants would change their minds shortly after an arrest, prosecutors disposed of their “garbage” cases quickly, either by dropping the charges completely or by plea bargaining them down (Silberman, 1978; Ray, 1984; and Umbreit, 1987).
The first experiments with ADR techniques for resolving civil and criminal conflicts were launched at the start of the 1970s in Philadelphia and in Columbus, Ohio. The Law Enforcement Assistance Administration provided seed money to cover the start-up costs of other programs. Most experiments were sponsored by and attached to a criminal justice agency such as a court or pro- secutor’s office; others were run by private non- profit organizations, a community group (such as the local bar association), or a county or municipal governmental body. The kind of sponsorship behind a center shaped the way it conducted its business and the types of cases it accepted (Alper and Nichols, 1981; Freedman and Ray, 1982; McGillis, 1982; Goldberg, Green, and Sander, 1985; and Harrington, 1985).
Pilot programs to test whether mediated resti- tution arrangements could lay the groundwork for reconciliation were pioneered in Canada in the mid-1970s and in Elkhart, Indiana, in 1978. Mem- bers of the Mennonite religious sect were among
the first enthusiastic supporters of this healing pro- cess. Their experimental project became a model for others to replicate and modify, just as the pen- itentiary (invented by the Quakers in the early 1800s as a nonviolent alternative to corporal and capital punishment) was copied by governments worldwide.
In 1980, Congress passed the Dispute Resolu- tion Act, authorizing the creation of a national clearinghouse to conduct research and disseminate information about “storefront” justice. In 1981, New York became the first state to fund new and existing programs. The entire branch of social sci- ence known as conflict resolution received much-needed recognition, legitimation, and sup- port in 1984 when Congress earmarked money within the military budget to establish the United States Institute of Peace. Courses on the techniques, strategies, and philosophies of conflict resolution and peacemaking are now offered routinely in schools and colleges, and in training programs for lawyers, police officers, and other criminal justice personnel (Cooper, 2000; and Volpe, 2000).
By the early years of the twenty-first century, statutes authorizing victim–offender mediation were on the books in 29 states. In some states, the possibility of mediating a conflict was simply listed as one of many sentencing alternatives, but in others, detailed provisions addressed liability issues, expenditures, the confidentiality of proceedings, training requirements for mediators, and methods for evaluating these programs (Lightfoot and Umbreit, 2004).
In 2002, the United Nations urged member countries to consider setting up experimental pro- grams in restorative justice.