This is a short piece I wrote for the U.S. Office of Justice Programs, Bureau of Justice Assistance (BJA) blog on restorative justice in the criminal justice context.
Fellow restorative justice advocates will know just how difficult (and often fraught) it is to answer the question “What is restorative justice?” This piece captures only a small portion of what restorative justice is and can be, but I hope it will serve as a helpful introduction to some of the basic tenets for those who are unfamiliar. Thank you to BJA for the opportunity!
Generally, the conversation about which cases should not be referred to restorative justice quickly turns to the crimes considered more severe or complicated such as sexual assault, domestic violence, or murder. Practitioners and advocates have a wide range of opinions about where restorative justice should “draw the line” with some seeing it as only an appropriate response for minor offenses or juveniles and some seeing restorative justice as an appropriate option for any incident of harm in which responsibility is being taken, further harm can be avoided, and the involved parties would like to engage in a restorative process.
Personally, my own thinking on this debate hinges on one question: Whom would I deny the opportunity of restorative justice? If in any given case, the responsible and harmed parties feel that a restorative justice process would be helpful to their own healing journeys and that process can be carried out safely with the support of well-prepared facilitators, then I do not think anyone should be denied the option of restorative justice.
However, there are times that a restorative justice process is not an appropriate response and can end up causing additional harm to all involved. Generally, these are crimes that are considered less severe, involving minor misdemeanors and often juveniles. Referrals of cases like these are all too common in restorative justice programs across the United States and proceeding with these referrals risks causing further harm to those involved and may damage the public’s trust in the restorative justice movement as a whole.
When Restorative Justice Widens the Net
One category of cases that should not be referred to restorative justice are cases that “widen the net.” These are cases that would have otherwise been handled with a warning or through an internal community process, but because restorative justice is an option, end up becoming further entangled in the criminal justice system.
For example, I recently heard about a fight at a school involving two 13-year-olds that was referred to a community restorative justice program. This restorative justice program has the (very common) rule that if a responsible party reoffends at any point during the process, then the case will be referred back to the judge to go through the standard court procedure. The two students got in another fight after being referred (but before their restorative justice conference took place) so were referred back to the judge and became further entangled in the criminal justice system. This sort of case is much better handled by the community where it occurred, ideally through a restorative process within the school.
Another example is cases where otherwise issuing a warning would have been considered sufficient. Often these are cases with no specific impacted party and not a great deal of harm caused, so are not well-suited for a restorative justice process and instead run the risk of widening the net, ensnaring people in a complex and often harmful criminal justice system.
As restorative justice advocates, we need to shift the conversation about what types of cases are not appropriate for restorative justice. The true risk to the effectiveness, impact, and perceived legitimacy of our work is not in making the process available to survivors of sexual harm or other more severe crimes, but rather in offering restorative justice processes for so-called minor crimes where it risks causing further harm or system entanglement.
Of course, sometimes a seemingly minor case can have a significant impact on the individuals involved, in which case restorative justice may be a good option, though it should be carried out without the threat of criminal charges pending if the restorative justice process isn’t successful. For example, I once facilitated a case in which a young man had drunkenly sprayed a local business with a bottle of mustard in the middle of the night. This seemed like a relatively minor offense, but the owner of the shop lived upstairs and was watching him on her security camera. She had previously been the victim of arson, so when she saw him spraying the mustard, she thought it was lighter fluid and was terrified. Because of the significant emotional impact in this case, it was helpful and healing for the woman to meet the young man and also beneficial for the young man to hear about the true impact of his actions and to have a chance to apologize and work to make things right.
When an Incident-Specific Restorative Justice Process Can’t Meet the Need
Recently, a student mentioned that the restorative justice program he is working with had held a restorative justice process for a woman experiencing homelessness who had stolen a beer and a sandwich (totaling $9 of stolen merchandise) from a local grocery store. The police had been called, the woman was issued a summons, and the judge had then sent the case to restorative justice. The woman then went through a restorative justice process to discuss the impacts of stealing the items and how she could repair the harm caused.
This case highlights very starkly how restorative justice processes often fall short by failing to address the underlying causes and conditions that lead to crime. While stealing, of course, causes harm, the more pressing issue in this case is that the woman is homeless and in a position of needing to steal food. The harm that we should be considering first and foremost is the factors (whether they be racism, sexism, addiction, mental health, lack of educational or economic opportunity, etc. or any combination of these factors) that led to the overwhelming need at the root of this crime. The harm we need to be discussing and addressing is how we, as a society, as a human community, have failed and are continuing to fail this person.
When restorative justice processes focus solely on the harm caused by the crime (in this case, the theft) and don’t address the root issue or repair the fundamental harm that led to the crime taking place, we cause further harm to the responsible party by failing to hear, honor, and work to repair the harm they have experienced. We also significantly hinder the transformative and revolutionary possibility of restorative approaches.
As restorative justice practitioners, we need to be shaping processes that not only discuss the harm caused by the crime, but also the harm experienced by the responsible party that led to the wrongdoing and how that harm may be repaired. Furthermore, we need to design restorative processes that will help our community to proactively address these needs. If we wish to truly transform the justice system, we need to actively push for greater systemic change and for processes that address the root causes of crime as found in racism, sexism, and lack of educational and economic opportunity.We do more damage when we put these cases through an incident-specific restorative justice process and discuss the individual’s behavior rather than their fundamental needs and how those needs can be met.
In my mind, these are the more pressing considerations in the discussion about which cases should and should not be referred to restorative justice.
During the presentation, I reference a pdf of specific recommendations to help to ensure that the restorative justice process is functioning as a transformative ritual that provides a space for significant and sustainable change at personal and relational levels. You can access that resource here.
Thank you again to all who attended! It was wonderful to get to share this work with such a supportive, engaged, and inspiring group of individuals!
Q: How can I help the facilitators I train in my program to understand the structural dimensions of crime? I worry that they are too focused on the interpersonal dimensions of crime and are ignoring the larger harms and roots of conflict in race-, class-, and gender-based systemic inequities.
A: This is a common issue in restorative justice programs around the world and one that is important to work hard to address. Fania Davis, Anita Wadhwa, and David Dyck (among others) offer some helpful resources.
This shortcoming in facilitators’ understanding is due in part to the fact that practitioners are generally not trained to think about restorative justice work within a systemic, structural frame of reference, and therefore, by default, tend to focus solely on personal responsibility without understanding the structural roots of the conflict or wrongdoing.
Practitioners need to be trained not only in interpersonal communication skills, but also the ability to recognize and address the way in which crimes and conflict reflect larger systemic problems.
One of Dyck’s recommendations is to teach facilitators theoretical models that will help them to grasp this larger issue. For example, Maire Dugan’s Nested Theory of Conflict provides a framework for understanding interrelated types of conflict in a community. Here is a game from www.RestorativeTeachingTools.com to help your facilitators understand this model.
In recent weeks, Kathleen and I, like many people, have recommitted ourselves to continued education, deep personal reflection, and action as we intentionally work to be antiracist. It is often uncomfortable and always vulnerable, but we know this is what we need to be prioritizing.
One of the resources we have found particularly helpful is White Fragility: Why it’s so Hard for White People to Talk about Racism by Robin DiAngelo. This book invites us to reframe our view of racism. Rather than seeing it as a moral failing that only “bad people” have, we see racism as inevitable (but possible to change) because of the culture in which we were socialized. This important reframe has helped us to feel gratitude (rather than shame and defensiveness) when we identify (or others identify) manifestations of our own racism so that we can work to change.
DiAngelo’s important reframe is at the heart of this month’s Restorative Teaching Tool. This activity will invite you and your learners to reflect deeply on your own defensive reactions to awareness of your racism and will provide a process to reframe how you are understanding and responding to that experience.
Kathleen and I are both white and have lived and worked in primarily white communities, so it felt important to design an activity that would provide an opportunity for groups of white people to reflect on their own racism and support each other in change. This is in the tradition of white affinity groups, spaces for white people to discuss race and white privilege and to do the work to challenge their racism together.
Please find a pdf with activity instructions here.
If you would like to sign up to receive future Restorative Teaching Tool of the Month emails, you can do so here.
“From criminology, psychology and political studies degrees, to university courses for the social workers, lawyers and schoolteachers of the future, restorative justice and restorative practice increasingly appear on higher education curricula. The United Nations Office on Drugs and Crime (UNODC) Education for Justice (E4J) initiative recognises the importance of restorative justice, and has developed a module to promote and strengthen its teaching in higher education institutions globally.
Further recent developments in restorative justice teaching in higher education include the publication of The Little Book of Restorative Teaching Tools (Pointer, et al., 2020) and a corresponding website, and efforts by academics in Ireland and Australia to encourage their colleagues from around the world and across different disciplines to share restorative justice syllabi.
While many collaborations and discussions focus on restorative justice research, few seek to bring the field together around its teaching in universities. In light of this, Dr. Wendy O’Brien (UNODC, E4J) and Dr. Ian Marder (Maynooth University Department of Law) co-organised a series of three online roundtables to enable those who teach restorative justice and restorative practice in higher education to learn from each other’s experiences of doing so.
These roundtables took place in mid-May 2020, involving around 70 academics from 30 countries. Each session began with a welcome from Dr. O’Brien who introduced participants to the tertiary component of E4J and the University Module Series on Crime Prevention and Criminal Justice. Next, Jee Aei (Jamie) Lee from the UNODC Justice Section shared information about the publication of the revised UNODC Handbook on Restorative Justice Programmes. The roundtables were then dedicated to discussions on different themes related to teaching restorative justice in universities. These discussions were chaired by Dr. Marder who used restorative practices to give everyone present an opportunity to speak.”
We are in a time of immense change in our country and one thing that is being reconsidered is the role of police and punitive sanctions more broadly in schools. Research has shown that the presence of police and punitive sanctions in schools often drives students —particularly minority and poor students—out of school, resulting in a “school-to-prison” pipeline (Losen 2015).
Restorative justice is a non-punitive and relationship-based approach to responding to misbehavior and harm that encourages accountability and the reparation of relationships. It also works proactively to generate a positive school climate where students feel safe, respected, and heard. This translates into a myriad of positive outcomes for students and teachers alike.
A 2020 study summarizing the most recent two decades of quantitative studies regarding the effectiveness of restorative justice in schools found that restorative justice implementation has the following impacts (Darling-Hammond et al 2020).
A decrease in harmful behaviors (i.e. violence).
A decrease in exclusionary discipline (i.e. suspensions and expulsions). Exclusionary discipline is associated with a large range of negative outcomes for students including dropping out of school and being incarcerated, so a decrease in exclusionary discipline results in other improved outcomes for students.
A decrease in suspensions of Black, Latinx, low-income, and special needs students.
A lower rate of recidivism.
A reduction in the racial discipline gap.
Increased graduation rates.
Improved school climate.
Increased social-emotional growth and position development of students.
Higher levels of school connectedness and positive peer relations.
Increase in students’ feelings of safety.
I strongly urge school districts around the country to consider implementing a comprehensive restorative justice program to ensure school safety and improve students’ experiences of school climate and feelings of belonging.
Darling-Hammond, S., Fronius, T. A., Sutherland, H., Guckenburg, S., Petrosino, A., & Hurley, N. (2020). “Effectiveness of Restorative Justice in US K-12 Schools: A Review of Quantitative Research.” Contemporary School Psychology.
Losen, D. (Ed.). (2015). Closing the school discipline gap: equitable remedies for excessive exclusion. Teachers College Press.
Brunilda Pali recently posted an interview with me on her site, Restorotopias. I thoroughly enjoyed this conversation! Bruna is a role model for me in the restorative practices field, so I was thrilled when she mentioned the idea of an interview.
For any RJ practitioners that may be reading, we touch on a few tricky questions in this conversation that are important to the further growth and implementation of restorative practices. I would love to hear your thoughts!