The Problems with Restorative Approaches
Restorative justice approaches suffer from several problems. This section identifies the more significant
problems, and the first—the fact of the diversity of restorative practices —has already been stated above.
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Perhaps commonality of most restora- tive approaches lies in what they are not: they are not held in a courtroom, they do not follow formal procedures of traditional courtroom practices, they do not exclude victims from par- ticipation, and so on.15
The fact of restorative justice’s diversity of practices leads to the problem that to speak of “restorative justice” is to discuss not any one single approach. This plurality of practices extends to the forms they can take from mediation to conferen- cing, but also to differences in dynamics in how these practices are delivered. The informality of restora- tive meetings is a key to their strength—they make it easier to target offender needs—but also con- stitutes a weakness, as some part of their success depends on the specific dynamics between the particular par- ticipants involved. While facilitators are trained to minimize such differ- ences, they can and do exist.16
A second problem is the limited application of restorative justice approaches. Generally, they are restricted to less serious crimes by young offenders and only rarely used for adults.17 Restorative justice approaches are limited to a relatively modest set of offenders and crimes and so may be considered to provide an incomplete view of punishment that does not cover all or even most types of offenders or crimes.18
Perhaps the reason for this limited applicability is a third, related problem of limited confidence which may prevent restorative justice approaches from being considered for more serious crimes. There is a concern the public may view these approaches as a “soft” option for more serious offences. So even if restorative approaches were proved
to be more effective at reducing reof- fending, they would still have the problem that they might be politically unpalatable.
There are many recent examples of criminal justice policies receiving popular support even though they undermined crime reduction efforts. The most prominent illustration is probably California’s so-called “Three Strikes and You’re Out” law requiring that offenders convicted of a third eligible criminal offence face a minimum of 25 years imprison- ment.19 Studies confirm this law led to an explosion in the prison popu- lation and the associated cuts in ser- vices for inmates, with only a negligible deterrent effect of no more than 2%.20 Populist proposals like “Three Strikes and You’re Out” indi- cate the public’s willingness to support more punitive penal policies in the mistaken belief that they will lead to improved crime reduction at lower cost—incorrect assumptions, neither of which came true.21
Restorative justice’s problems of limited application and limited accep- tance are connected to a fourth problem, namely, that restorative alternatives to traditional sentencing are constrained by their limited avail- able options. Restorative justice approaches considered here do not include so-called “hard treatment” options like imprisonment, nor sus- pended sentences as a part of their available options for a restorative con- tract. Indeed, some claim restorative justice approaches do not offer us a view about punishment because hard treatment is not an option for contracts agreed to at restorative meetings.22
The reason for excluding hard treatment as an option is that its use is thought to be counterproductive
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to reducing reoffending. Imprison- ment is too often not the start of a person’s long-standing social-econ- omic and legal problems, but their confirmation—where bad situations can become much worse. Common risk factors for reoffending include economic insecurity, employment insecurity, financial insecurity, and housing insecurity, to name only a few.23 These problems can often become exacerbated through even brief time spent in prison. Some research suggests that prison may even be “criminogenic” because it may contribute to a greater likelihood that an imprisoned offender reoffends on release.24
While imprisonment can often make crime reduction more difficult, imprisonment is not always counter- productive to this purpose. The problem here is not that the prison is used, but how it is used—and how it can and should be improved. Restorative justice highlights the many attractions of an alternative criminal justice process where prison is not an available option. These approaches show that another model is possible—sometimes even prefer- able. For most proponents of restora- tive justice, its opposition to imprisonment is viewed as a strength of its “abolitionist” position.25 Restora- tive approaches provide a promising process that might help us curtail the use of prison to ensure it is a last resort.
The reason for limiting options for restorative approaches to exclude the use of prison is connected to a final problem: the lack of clarity these approaches offer about what is restored through a specific restorative approach. Strictly speaking, restora- tive justice approaches reject the use of prison because imprisonment is seen as a barrier to restoration.26
This is a contestable empirical claim that mistakes how we find many prisons with how prisons should be found while raising new questions about what is meant by restoration.
Restorative justice approaches claim they enable a restoration of the damaged relationship between an offender and the wider community. But which community and who are the relevant members? Many argue this claim “remains shrouded in mystery.”27 For example, Andrew Ashworth says:
If the broad aim is to restore the “communities affected by the crime,” as well as the victim and the victim’s family, this will usually mean a geographical community; but where an offence targets a victim because of race, religion, sexual orientation, etc., that will point to a different community that needs to be restored.28
There are two concerns here. The first is the problem of identifying the appropriate community to be restored, and the second is the problem of selecting persons from that community to participate in a restorative meeting. The first problem of identifying the appropri- ate community affected by a crime is significant. Restorative justice requires a restoration of the members within that community, but we each identify with multiple and sometimes overlapping communities, and so it is unclear how we should choose between them. These commu- nities are rarely static and our identi- ties are not created in a vacuum, suggesting that even if we could identify “the community” this may be of limited practical benefit for the purposes of achieving restorative justice.29
A further problem concerns the idea of restoration itself. Restorative justice aims at a restoration of an