Restorative Justice in Youth and Adult Criminal Justice
Restorative Justice in Youth and Adult Criminal Justice
- William R. Wood, William R. WoodDepartment of Criminology and Criminal Justice, Griffith University
- Masahiro SuzukiMasahiro SuzukiDepartment of Criminology, Central Queensland University
- and Hennessey HayesHennessey HayesSchool of Criminology and Criminal Justice
Restorative justice is an innovative justice response to crime and offending that takes many forms such as victim-offender meetings, family group conferencing and youth justice conferencing, and sentencing or peacemaking circles. While restorative practices are used in a wide variety of contexts such as schools and workplaces to respond to and resolve conflict, restorative justice practices are predominantly used within criminal and youth justice. Key goals of restorative justice include (a) meeting victim needs of participation in justice processes and redress for harms caused to them, (b) asking wrongdoers to be accountable and actively responsible for making amends to victims and other they have harmed, and (c) involving primary and community stakeholders in restorative practices that repair harms to victims, promote offender reintegration, and enhance community safety and well-being. Existing research shows that restorative justice consistently meets most of these goals better than conventional court practices. However, restorative justice also appears to work better in some cases than in others, and also faces several limitations and challenges within its use in criminal justice systems. Limitations include dependence of restorative justice on state justice apparatuses for definitions of harm, and lack of fact-finding mechanisms that render most uses of restorative justice as diversionary or postadjudicative responses to offending. Challenges include lack of agreement on the aims and goals of restorative justice theoretically and in practice, administrative dilution and co-option of restorative aims and goals within increased institutionalization in criminal justice agencies, and uncertainty about the ability of restorative justice to redress harms situated within social-structural forms of violence and oppression such as gendered violence and systemic racism.
- International Crime
The first use of restorative justice (RJ) is often traced to Kitchener, Ontario, in 1974, where a probation officer helped to arrange meetings between two young people and victims whose properties they vandalized. These young people met directly with the victims, inquired into the damages for their offenses, and were able to directly pay restitution within three months. These meetings and others like them evolved into Victim-Offender Reconciliation Programs (VORPs), used in Canada and some US states in the late 1970s and 1980s.
While VORPs are often seen as the first use of RJ, they also reflect the emergence of several informal and alternative justice approaches in the 1960s and 1970s as a part of a growing movement to deinstitutionalize and deformalize responses to social problems. Health and mental health, education, social welfare, and law (civil and criminal) were all challenged by reformers critical of the institutional and often coercive nature of social control embedded within these institutions. Nils Christie’s (1977) seminal article on “conflicts as property” set forth an influential argument for the use of alternative justice practices that might eschew the courts and legal professionals in lieu of letting people more directly “own” their own conflicts in ways that better met their own needs, and provided them with more decision-making power over their own lives. This has been happening for centuries prior throughout the world, and was in fact already happening again in smaller ways within Western countries where informal approaches were being used for civil and some criminal justice matters, including alternative dispute resolution, community mediation, and so on.
In this regard, what has become called “restorative justice” was in fact a subset of these informal approaches that included dialogue-driven resolution between parties for matters that would generally otherwise be dealt with through conventional criminal justice approaches. While its origins are frequently traced back to the “Kitchener Experiment” in Ontario, there is in fact no single clear genealogy of RJ. What is clearer is that VORPs set a framework for the development of further RJ practices in Canada and the US, in particular Victim Offender Mediation (VOM, also now often referred to as Victim-Offender Meetings). This approach utilized many of the lessons learned in VORPs, but with recognition that the primary function of such meetings was not “reconciliation” between parties. Rather, VOMs set forth a more clearly defined process where offenders were asked to admit to harms they had caused, listen to victims about the impacts of harms, engage in dialogue about how to make amends, and complete these agreements with victims (Umbreit, 2001). By the late 1980s, VOMs were being used in many US states and a few other countries, predominately as a diversionary practice in youth justice (Umbreit & Greenwood, 2000). As such, VOMs often dealt with less serious offenses, and an inventory of programs in the United States from the late 1990s found the four most common types of offenses dealt with by these were vandalism, minor assaults, theft, and burglary (Umbreit & Greenwood, 2000).
In 1989, New Zealand introduced the use of Family Group Conferencing (FGC) as part of a comprehensive legislative reform of its youth justice system. This legislation (Children, Young Persons, and Their Families Act 1989) sought to redress high custody rates for young people, poor integration of social and youth justice services, and lack of inclusion of young people’s families in decisions regarding matters of care child protection and youth justice. Based on a diversionary framework, this new legislation largely abandoned the use of youth custody, utilized informal and formal police cautions for less serious offenses, and implemented FGCs as a mechanism to deal with more serious youth offenses and young people with significant needs (Children, Young Persons, and Their Families Act 1989).
FGCs are important to the story of RJ for two reasons. First, unlike the use of VOMs in North America, FGCs represented the first legislated use of a “restorative” approach to dealing with the aftermath of offending. It was a top-down approach, as opposed to a bottom-up or grassroots approach that typified many VORP or VOM programs in North America at the time. This was important for RJ advocates seeking ways to effectively integrate RJ into the criminal justice system, and the legislated use of FGCs was seen as a crucial step toward integrating the use of RJ into state-delivered youth justice practices. Second, unlike many VORPs or VOM programs, FGCs were routinely used to address more serious cases of youth offending. For RJ advocates this reflected a concrete example of the ability to use RJ as more than a diversionary mechanism for less serious offenses.
The impact of FGCs on the development of RJ was almost immediate in other countries. Influenced in part by the FGC model, in 1991 a police-led conferencing program for young people was trialed in Wagga Wagga, New South Wales. Within a decade, all Australian states and territories were using some form of youth justice conferencing (YJC) (Larsen, 2014). FGCs and YJCs were also influential in the adoption of this practice in the U.K. in the 1990s (Jackson, 1998), and VOMs and forms of conferencing were also being trialed and implemented in several European countries and in South Africa.
By the turn of the century, Van Ness (2001) had documented RJ programs in at least 80 countries. This number is certainly much higher two decades later, especially where its use has grown significantly in Asian (Steels & Goulding, 2013), South American (Bolívar et al., 2012), and some African countries (Skelton & Batley, 2006). While types of practice and degree of use vary by jurisdiction, there is little question that RJ can be characterized as a global justice movement (Johnstone, 2020). At the same time, this movement is also a loosely coupled one. Definitions, practices, and even philosophies of RJ vary, and distinct approaches to RJ have emerged within different countries, regions, and sociocultural and political contexts. This variation is a strength of RJ in terms of its flexibility and adaptability as a justice mechanism designed to allow people to more fully participate in the “ownership” of their own conflicts. However, this diversity of practices, approaches, and even philosophies make RJ difficult to characterize or comparatively analyze at the broad level of a “movement.”
Indeed, as a justice movement, variations of RJ have moved far beyond its use within or as an alternative to the criminal justice system. More recent developments of what are often called “restorative practices” in education, health and mental health, workplaces, and other social milieu parallel the use of RJ within or as an alternative to criminal justice practices. However, the emergence of such practices and their recent growth make it impossible to give them full consideration here, even though these certainly warrant such consideration.
This chapter thus looks at the smaller scope of RJ as it is used within or in some cases as an alternative to youth and adult criminal courts. The focus of the chapter is global, but in reality even this is an ambitious scope that unfortunately reflects that much of what is known about RJ comes from a smaller number of countries or regions where RJ has longer histories, and where there is institutional and public support for the production of such knowledge. These are, with few exceptions, more affluent countries, and in this regard it is important to recognize that what is known about RJ by researchers only reflects only a smaller amount of the actual use of RJ that is now happening globally.
What Is Restorative Justice?
The question of what is restorative justice remains a contested or “vexed” one (Daly, 2016; Wood & Suzuki, 2016). Most advocates and practitioners agree on the use of this term to describe and define several types of justice practices that bring victims, offenders, and other relevant parties together to address and resolve harms caused by crime. These practices include forms of restorative conferencing, peacemaking and sentencing circles, and VOM. Some scholars and advocates take a narrower or “minimalist” view of RJ as encompassing only such practices as they involve “those most directly affected by the crime. Victims, offenders, and their communities of care must have the opportunity to engage in dialogue and potentially reach mutual agreement” (McCold, 2004, p. 15; see also Sherman et al., 2008). Others propose a broader or “maximalist” definition of RJ as “every action that is primarily oriented towards doing justice by repairing the harm that has been caused by crime” (Bazemore & Walgrave, 1999, p. 48). For maximalists, the definition of what is restorative depends less on practices such as FGCs or VOMs, and more on the restorativeness of outcomes, even within more traditional sanctions such as community service, which may or may not be seen as restorative depending on the overall goals and activities of such service work for offenders (Bazemore & Maloney, 1994; Wood, 2012).
There is also disagreement as to whether RJ can be thought of as a distinct theory or philosophy of justice. The seminal work of Howard Zehr (1990) set forth an influential view of RJ as a “lens” or paradigm of justice distinct from retributive or rehabilitative justice paradigms. Other scholars have taken issue with the notion that RJ reflects a distinct paradigm of justice—particularly with the idea that RJ is an alternative to retributive or “punitive” forms of punishment. Daly (2000), for example, has argued that RJ should more rightly be thought of not as alternative to punishment, but rather as an alternative form of punishment. Stenning (2010) has similarly noted that most RJ practices function as alternatives to sentencing hearings and administrative forms of punishment. Other scholars have also pointed to both retributive and rehabilitative functions within RJ approaches; in particular emphasis on proportionality in punishment or “amends” (Roche, 2007), and in some cases the inclusion of rehabilitative goals within RJ meetings and outcomes, for example the inclusion of anger management, drug treatment, or other rehabilitative programs as a condition of RJ meetings or as part of restorative agreements between parties.
Part of the difficulty in any characterization of RJ is that there are many varied forms and ways that it is used. Daly and Stenning’s characterizations of RJ are most salient for countries where it has been more integrated into adversarial and common law systems, especially Commonwealth countries and the United States. However, in North Ireland, South Africa, and some First Nations communities in North America, RJ may be used as a fully fledged alternative to the criminal justice system (Eriksson, 2015; Skelton & Batley, 2006). In European and other countries with inquisitorial systems of justice, RJ may be used as an alternative to or alternative approach within formal court processes or through informal dispute resolution mechanisms (Bolívar et al., 2015; Zinsstag et al., 2011).
Arguably, the most cited definition of RJ comes from Marshall (1999, p. 5, emphasis in the original), who has defined it as “a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future.” The United Nations (UNODC, 2020, p. 15) has defined RJ in part as
any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator.
Given existing ambiguity in definitions, Daly (2016) has more recently argued that RJ should be thought of as a “contemporary justice mechanism.” By this term, Daly (2016, p. 21) views RJ as one of several types of “innovative justice” approaches, which also include therapeutic jurisprudence, Indigenous courts, and other alternative mechanisms designed to “address crime, disputes, and bounded community conflict.” Contrary to a more “maximalist” view of RJ, Daly (2016, p. 21, emphasis in the original) argues that while RJ shares some features of other innovative justice mechanisms, it is also distinct from them in that it involves,
a meeting (or several meetings) of affected individuals, facilitated by one or more impartial people. Meetings can take place at all phases of the criminal process—prearrest, diversion from court, presentence, and postsentence—as well as for offending or conflicts not reported to the police.
Between Zehr’s vision of RJ as a distinct justice paradigm and Daly’s proposal of RJ as an innovative dialogue-driven justice mechanism, there exists a plurality of views and debates about definitions. It is important to acknowledge the diversity of these views not only in terms of differing perspectives, but also in the wide variety of practices that exist today, and the manner in which they are used within or as an alternative to conventional youth and criminal justice systems.
Restorative Justice Practices
While different forms of RJ approaches are used in different jurisdictions, three forms are considered primary (McCold, 2006; Umbreit & Armour, 2010), namely conferencing, peacemaking or sentencing circles, and VOM. Some jurisdictions, particularly in the US, also use community reparative boards, particularly in cases where there may be no identifiable victims or for offenses against the community. All of these approaches vary in principle, discussed in this section. However, it is also important to note there are frequently differences even within same-type RJ practices, including eligibility, referral stage, type and number of participants, and roles of facilitators (Shapland, 2012; Strang, 2012; Walgrave, 2012). For example, within Australia alone where every state or territory uses some form of YJCs, some of these are facilitated by the police, and others by trained RJ convenors. Some Australian states and territories use YJCs for very serious offenses such as attempted murder or sexual offenses, and others use them only for less serious offenses. Some allow for referrals preadjudication, others do not. Similar differences exist within conferencing, mediation, and circle practices as they are used in different jurisdictions throughout the world.
Types of Restorative Justice Practices
The different types of RJ approaches commonly used within or as alternative to the criminal justice system are well-documented in the existing literature (McCold, 2006; UNODC, 2020; Van Ness & Strong, 2014). VOMs have historically involved meetings between a victim and an offender, facilitated by a trained mediator (Umbreit, 2001). FGCs and YJCs also involve victims and offenders as “primary stakeholders,” but may include family or supporters of the victim or offender (Daly & Hayes, 2001). Some research suggests that VOMs are also more frequently allowing for inclusion of family or supporters, so it is not clear today how much VOMs and conferencing may differ as much as they have in the past.
Peacemaking and sentencing circles usually involve a larger group of participants than VOMs or conferences. Sentencing circles are commonly but not exclusively used within First Nations communities in North America. These circles may include immediate and extended family of the wrongdoer and those harmed, community members and elders, and in some cases justice officials (LaPrairie, 1995). Peacemaking circles (also sometimes called healing circles) also generally utilize a larger circle of participants, although the number and type of participants may vary according to the type of offense, needs of participants, and so on. It is not uncommon for the circle process to occur over several meetings, sometimes between a smaller “inner group” prior to the full circle. Circles may often go much longer than the usual one to two hour VOM or restorative conference, as there is emphasis on allowing all participants to speak and to achieving consensus toward goals of offender accountability and reintegration, victim redress and support, and community participation (Pranis et al., 2013).
Community reparative boards, sometimes also called community diversion boards or community accountability boards, are used as a diversionary or alternative sentencing mechanism. These involve trained community members that meet with offenders to discuss the impact of the offense on victims and the community, how the offender can make amends for these harms to victims and the community, and what can be done to help the offender desist from harmful behaviors (Karp & Walther, 2001).
Characteristics of Restorative Justice Approaches
Despite the diversity of RJ approaches, conferencing, circles, and VOMs share several key characteristics. Most importantly, they all afford some degree of direct participation for victims, offenders, and other relevant parties. This is often conducted in face-to-face meetings, but in some cases may include the use of shuttle mediation or use of victim surrogates. RJ approaches also share several similar characteristics in terms of their structures. They typically progress through three stages: introduction, storytelling, and agreement negotiation (Daly & Hayes, 2001). Facilitators open the meeting with general introductions, a summary of what the meeting is expected to achieve, and ground rules or expectations for how participants are expected respect and listen to each other.
Following introductions and the orientation summary, the facilitator asks affected parties to share their stories. In most cases, the victim is asked to share their story first, including their experiences and the harms caused to them. The emphasis of the victims’ story is to allow them to explain how the offense has affected them physically, emotionally, financially, materially, or otherwise. Following, offenders are usually asked if they agree with the official details of the offense as well as to account for their behaviors—i.e., to tell their story about the offense and its associated circumstances. They also may be asked to describe how they came to be involved in the offense and what they were thinking and feeling before, during, and after the offense. Supporters for both parties may then be invited to offer additional comments. For example, offenders’ parents may describe how their child’s offending behavior has affected them and their family (e.g., caused embarrassment), and victim supporters may reveal how the offense has impacted them.
Restorative meetings generally then move to discussion about what offenders can do to make amends for harms caused by their offending (i.e., the “agreement” or outcome). Victims are asked what they would like as an outcome of the meeting, and offenders may also be asked what they think should happen in terms of making amends for harms they have caused. In this discussion, supporters for participants may be invited to comment on proposed outcomes—e.g., parents of offenders may comment on the offenders’ capacity to be able to comply with what has been negotiated for the agreement, and victim supporters may highlight any concerns they have about the content of the agreement. In some cases, there may also be discussion and explanation by the facilitator of proportionality of amends in relation to harms caused, for example if victims request unseasonable or unrealistic monetary compensation from an offender in relation to harms caused. There may also be discussion from the facilitator or other parties in cases where the offender does not adequately demonstrate accountability for harms caused, or willingness to make reasonable (i.e., proportional) amends for such harms. Most meetings reach some form of agreement, but not all.
Aims and Goals of Restorative Justice
The primary goal of RJ is to achieve justice for all stakeholders associated with an offense or harms. What sets RJ apart from conventional justice practices is that justice is an outcome negotiated through process between the key stakeholders. Outcomes are not guided by legal precedent, nor are they delivered by facilitators or other justice professionals. Rather, victims and other participants in RJ meetings suggest ways that offenders can repair the harm caused by the offending that are meaningful for both victims and offenders, generally through a dialogue-driven process.
In seeking to achieve the goal of justice for stakeholders, RJ literature and practices generally focus on three primary aims. These include meaningful victim participation and redress, offender accountability and reintegration, and (in some but not all cases) community involvement in the RJ process (Braithwaite, 2006; Maruna, 2006; UNODC, 2020). While these aims are primary, they also depend on several key assumptions and “best-practice” delivery of RJ programs.
The first assumption in best-practice delivery of RJ is the safety and well-being of all participants. RJ does not function well, and indeed people may decline to participate when there is fear of revictimization or other significant physical, psychological, or emotional concerns of participants regarding the proposed meeting. Best-practice guidelines for RJ thus generally start with the premise of “do no harm.” When there are indications that offenders may not be willing to take responsibility for the harms they have caused, or when victims express significant reticence to meet with offenders, there is a higher likelihood that RJ meetings may cause further harm or end in poor outcomes (Choi et al., 2010; Umbreit, 1999).
In principle, these risks are mitigated in two ways. The first is voluntary participation of all parties in RJ meetings. Voluntary participation is viewed as essential because coerced offenders may not be willing to demonstrate accountability for their actions, and coercion of victims is likely to result in alienating victims and possible further victimization though the RJ process. If both parties express interest in RJ, cases are usually further screened for suitability, which is used for several purposes including determination of risks to safety and well-being of participants. Most RJ practices used today involve one or more preparation meetings with each party individually to assess offender’s willingness to accept responsibility and make amends, and victim’s ability to engage in dialogue without further revictimization (Rypi, 2017; Suzuki & Wood, 2017b). Preparation meetings are also used to explain the purpose of the RJ meeting to participants, how the meeting will be structured, and expectations of participants. While some earlier forms of VOM were conducted “cold”—i.e., with no prior preparation for participants, this is not common today, and premeeting preparation is widely considered to be part of best-practice for the use of RJ (UNODC, 2020). This is also supported by research that has found that RJ meetings without preparation result in poorer outcomes (Wilson et al., 2017).
The other best-practice assumption in RJ meetings is use of respectful dialogue between participants, as well as the meeting facilitator. Often referred to as “procedural justice” (Tyler, 2006), RJ meetings are designed to allow each participant a chance to speak about their experiences, be heard by others, and suggest ways in which in which the offender can best make amends. The intent here is not only to achieve an “agreement” between parties, but to create a process that is seen as just, fair, and legitimate by all parties. Meetings may often elicit deeply emotional reactions from participants, but the structure of the meeting itself is designed such that parties have opportunity to speak and have their concerns heard by other parties and the facilitator. Facilitators may intervene when there is interruption or lack of respectful dialogue, but they are expected to be respectful to all parties throughout the process. Unlike civil mediation, however, facilitators are not “neutral” in RJ meetings in that offenders are expected to admit to harms they have caused, and victims are not required to “prove” that harms have been caused to them. Facilitators are thus often faced with the difficult task of “advocating” for offender accountability and victim redress without appearing to unduly take sides. This is a difficult thing to do in practice, and research suggests that quality of facilitation may play a more vital role in positive outcomes of RJ meetings than is often recognized (Rossner & Bruce, 2018; Sherman et al., 2003).
Without these procedural elements, RJ meetings are not likely to function well (Scheuerman & Keith, 2015; Tyler et al., 2007; Wemmers & Cyr, 2006). When these elements are present, they help to better achieve primary aims of meaningful victim participation and redress, offender accountability and reintegration, and effective community involvement and input in the RJ process.
Victim Participation and Redress
One primary aim of RJ is to provide a response to crime that meets the needs of victims (Strang, 2002; Zehr, 1990). Victims of crime often express several needs including information about their cases and the offender, recognition by the offender and the justice system of the harms caused to them, recognition and support for emotional and psychological effects resulting from victimization, monetary compensation for financial impacts of crime, and a desire to be involved in the decision-making process in dealing with the aftermath of crime (Bolitho, 2015; Daly, 2017; Strang & Sherman, 2003). These needs may be principally achieved by providing victims with a justice process that includes victims in the decision-making process about outcomes of their own cases, but also more generally affords them opportunity to obtain information and give input, even if they do not wish to meet with offenders.
RJ seeks to meet victim needs in several ways. Victims are given an opportunity to be heard by offenders and the justice system about how the offense has affected them. Victims are provided information about the offense and are able to ask offenders questions about their motives, the context of their offending, and potential revictimization. By hearing the offenders’ story, telling their own story, and getting answers to questions that are important to them, victims may better understand the context of the offense, motives of the offender, and make decisions about how the offender can best repair harms they have caused.
RJ practices also afford victims an opportunity to voice emotional, psychological, and financial impacts of crime, and to have these heard directly by the offender and justice system. Victims often experience effects such as trauma, loss of self-esteem, a sense of vulnerability, and emotions such as anger and fear (Strang, 2002). They also frequently suffer direct and indirect monetary losses. Through collective negotiation of outcomes in RJ meetings, offenders are given an opportunity to engage in activities that can repair harms they have caused, including restitution (including payment or some type of work for the victim), demonstration of remorse and provision of sincere apologies, or other actions that may be important in terms of addressing victim needs.
Offender Accountability and Reintegration
To participate in RJ, offenders are expected to admit to their offending and be willing to take responsibility for harms they have caused. This is important for three reasons. First, by admitting to the offending and giving an “account” of their actions, offenders acknowledge that they have caused harm. Second, the giving of account precipitates dialogue as to whether an offender’s accounting of their actions and harms caused is satisfactory to the victim and other parties. Third, in taking “responsibility” for their actions, offenders are expected to suggest and demonstrate ways in which they can effectively “make things right,” which again is usually a dialogue-driven process between parties in terms of reaching agreement about how this can best be achieved. In RJ meetings, offenders are thus expected to take not only “passive” responsibility by admitting their offense but also “active” responsibility by making amends for the harms they have caused (Braithwaite, 2006).
Common ways offenders may demonstrate active responsibility in RJ meetings include the offering of sincere apologies, the demonstration of remorse and empathy to victims, restitution or work in lieu directly to the victim, and service to the community as it may be suggested by the victim. In cases where there are underlying issues related to offending behavior such as drug or alcohol use, or anger and self-control problems, offenders may be asked to undertake counseling to address these issues. In some cases, such as the use of RJ for sexual offenses, offenders may be required to undergo treatment or counseling in conjunction with and/or as a part of their demonstration of accountability.
Some RJ advocates and policymakers also view RJ as a mechanism of accountability that may encourage reduced reoffending following an RJ meeting. However, whether this should be an aim of RJ remains controversial within literature (Presser et al., 2007; Robinson & Shapland, 2008). While there are theoretical links between RJ and expected reduced reoffending (Hayes, 2007), existing empirical evidence on the capacity of RJ to reduce reoffending is mixed (discussed below). Also, many advocates argue that focus on reoffending as a goal of RJ may eclipse more immediate and established aims and outcomes, especially for victims of crime (Gavrielides, 2007; Zehr, 2002). This is why Braithwaite (2002) and others (Choi et al., 2012; Umbreit et al., 2008) have argued, given the other strengths of RJ, reduced reoffending should be a hoped-for outcome but not a primary goal of RJ meetings.
RJ literature often uses the concept of “stakeholders” in relation to people that have an immediate “stake” or vested interest in the impacts and outcomes of a particular offense, arguing that those most directly affected by an offense should be the ones most directly involved in its resolution (Bazemore & O’Brien, 2002; McCold & Watchel, 2003). Within RJ approaches such as conferencing, circles, and VOM, “primary” stakeholders include victims and offenders, but may also include “secondary” stakeholders such as the families and supporters of participants, as well as community members or representatives.
Community involvement in RJ practices is seen as important for two reasons. First, local communities have a vested interest in helping to design, implement, and participate in justice programs that reflect their goals and values. Thus, community members and organizations may be important resources or hold significant social capital to support justice programs that better meet the needs of those impacted by crime. Second, communities may also be victims of crime directly (i.e., “primary stakeholders”), for example in the case of public property damage, but also indirectly as “secondary stakeholders,” as crime may impact quality of life or divert important resources away from other community goals or institutions.
In this regard, community is often viewed as the third key stakeholder in RJ approaches, along with victims and offenders (Dzur & Olson, 2004; Rosenblatt, 2015). How community is involved within the development, implementation, and delivery of RJ varies, however. Probably the best-known example of “community-driven” RJ is community reparative boards. Other RJ approaches may involve community members or organizations in myriad ways. In many jurisdictions, conferencing or VOM programs may be led by community-based organizations. In some cases, these organizations may work in conjunction with the state to deliver RJ as an “alternative” diversionary or postadjudicative practice. In North Ireland, South Africa, and some Canadian and US jurisdictions, community organizations may deliver RJ programs as a fully fledged alternative justice process (Eriksson, 2015; Monaghan, 2008; Tomporowski, 2014). Sentencing circles in North American First Nations communities, as well as other forms of RJ used by First Nations peoples in Australia and New Zealand may also be community-led (Cultural and Indigenous Research Centre, 2008; Paulin et al., 2005), although there has been significant criticism by some First Nations scholars and activists around the degree of self-determination in such programs, discussed below in more detail. The use of RJ within some African countries may also be community-driven, especially in concert with customary law and established informal dispute resolution mechanisms (Gabagambi, 2018).
Even in cases where RJ programs are delivered by the state, or are state-sanctioned, community members and organizations may play a role in the development and delivery of RJ. In some cases, this involves the deliberate inclusion of community representatives in restorative meetings, for example in the Thames Valley Police initiative in restorative cautioning, which began in 1998, where community members are recruited to participate in youth offender panels (Hoyle & Rosenblatt, 2016).
The Efficacy of Restorative Justice Practices
Broadly, there are three sets of questions that most empirical research on RJ can be grouped under (some research addressing more than one). These include the following:
Does RJ work better for participants compared to conventional court practices?
Why does RJ work better for some people, groups, or programs than others?
What are the “gaps” between the primary aims of RJ, and its “on the ground” delivery?
Restorative Justice Compared to Court Practices
The logic of comparison research within RJ is straightforward, namely do such programs work better for victims and offenders when compared to conventional criminal justice practices. Comparison studies generally answer this question by identifying a sample of people that participate in RJ against a sample that do not receive RJ, control for any identified differences between the groups, and isolate the impact (if any) on those that receive or are assigned RJ.
The answer to this question is more nuanced, however, and brings to light two issues in assessing the comparative efficacy of RJ programs. The first issue involves differences, often substantial, in how “efficacy” is conceptualized and measured in comparison studies. The most frequently used measure used to assess efficacy is reoffending. However, comparison studies measure reoffending in different ways (i.e., rearrest, reconviction, etc.), for different lengths of time following RJ delivery, and for different programs that may or may not provide other rehabilitative or reintegrative services to offenders. Thus, individual comparison studies are often limited in their “generalizability” to other RJ approaches or programs.
The issue of generalizability is even more problematic for comparison research on victim experiences and outcomes between RJ and conventional court practices. A primary reason for this, explained by Strang et al. (2013, p. 33) in their systematic review of RJ conferencing, is that comparison studies generally
use cases or offenders as their unit of random assignment and analysis: victims are ‘attached’ to the cases randomly assigned and the random assignment sequence does not create comparability across victims in the same way that it does for offenders.
The cumulative result is that comparison studies do not compare “like by like” victims between RJ and conventional court practices, and this issue is compounded by different instruments used to measure victim experiences and outcomes. Hence, the generalizability of comparison studies on victim experiences and outcomes is even more limited than for offenders.
The second issue involves differences in the quality of research design and methodology of RJ comparison studies. Many earlier comparison studies in the 1980s and early 1990s found appreciable benefits for victims and offenders compared to conventional criminal justice practices. However, these studies were also beset with problems of methodological rigor, for example, adequate control for selection bias between RJ and non-RJ groups (by researchers or by program structure; McCold, 2008; Piggott & Wood, 2018).1
These issues are widely recognized by researchers and substantial attention has been given to strategies that may mitigate or overcome these. In terms of the generalizability issue, several meta-analyses have been conducted on comparative RJ outcomes (Bonta et al., 2002; Latimer et al., 2005; Lipsey, 2009; Nugent et al., 2003; Wilson et al., 2017), and some systematic reviews of evidence also exist (Sherman & Strang, 2007; Strang et al., 2013). In terms of issues in quality of research design and analysis, by the late 1990s, more empirically rigorous studies were being used, including using randomized controlled trials (RCT) and propensity score matching. The most well-known of these are the Reintegrative Shaming Experiments (RISE) study in Australia (Sherman et al., 2001), the Bethlehem Restorative Policing Experiment (BRPE) (McCold & Watchtel, 1998) and Indianapolis Juvenile Restorative Justice Experiment (IJRJE) (McGarrell et al., 2000) in the US, and the Justice Research Consortium (JRC) in the U.K. (Shapland et al., 2004).
Victim Experiences and Outcomes
Comparison studies (including meta-analyses and systematic reviews) suggest that in the aggregate victims are no less satisfied and usually more satisfied with RJ than conventional court practices (Latimer et al., 2005; Sherman et al., 2008; Strang et al., 2013; Wilson et al., 2017). Most existing studies have looked at property or personal offenses, and there is little comparison research on the use of RJ for domestic and family violence, sexual violence, white collar crimes, corporate crime, or hate crimes. Nevertheless, consistent findings of greater victim satisfaction for RJ within existing studies are not surprising, given the large amount of research documenting problems of victim exclusion (Englebrecht, 2011; Wemmers, 2009) and revictimization (Orth, 2002; Walkalate & Clay-Warner, 2017) in conventional justice system practices. In many cases, RJ is the only option for victims to be able to participate in their own cases, in any capacity.
Beyond general measures of victim satisfaction, some comparison research has also measured more specific elements of RJ meetings that appear to work better for victims than conventional court practices. These include victim perceptions of procedural justice, and emotional or symbolic restoration of harms. Arguably, the most constant finding across comparison studies is that RJ does better than conventional court practices in terms of victim experiences with procedural justice (McCold & Watchtel, 1998; Strang, 2002), and high rates of victim satisfaction are partly attributed to procedural justice elements in the various stages and aspects of RJ processes (Van Camp & Wemmers, 2013). For example, victims perceive fairness in their treatment during the dialogue process because they feel their voice is being heard (Strang et al., 2011). Victims also tend to perceive that the outcome of RJ encounters is fair and just (Shapland et al., 2007).
Some comparison research has also looked at emotional or symbolic reparation, which has been extensively explored by Strang (2002). Based on the RISE study, Strang (2002) reported that RJ conferencing reduced anger and fear of victimization more than for victims participating in conventional court processes. Other experimental studies demonstrate similar findings on the impact of RJ encounters for reducing negative emotions of victimization (Strang et al., 2006). Comparison studies have also found victims in RJ meetings were more likely to receive an apology from offenders than those in courts because victims in RJ meetings were able to confront offenders, while victims in courts rarely had such an opportunity (Shapland et al., 2007; Sherman et al., 2005).
Given the research evidence amassed to date in comparison studies, there is ample reason to conclude RJ interventions have positive impacts on victims in the aggregate, at least in the short-term. Victims tend to find the RJ process more procedurally fair and just and tend to be satisfied with collectively negotiated outcomes more frequently than with outcomes in conventional court practices. For victims, satisfaction is derived mainly from their active participation in RJ processes—i.e., receiving answers to questions that are important to them, being involved in negotiating meaningful outcomes, and receiving what are perceived to be sincere apologies.
Less is known about longer-term potential benefits of RJ encounters for victims. Research from Sherman et al. (2015) found benefits of RJ encounters remained even after 10 years, where victims who participated in RJ meetings as part of the RISE project were still less likely to feel anxiety, fear, and anger than victims whose cases were assigned to courts. Relatedly, Strang (2012) also reported that victims assigned to RJ encounters in the RISE project remained satisfied with the way their case was handled after 10 years, and reported reduced feelings of vengeance toward their offenders. Other research has also measured medium- and long-term effects of posttraumatic stress disorder (PTSD) or similar anxiety-related effects on victims of crime. Angel et al. (2014) found victims whose cases are dealt with by a RJ process compared to case that go to court showed significantly reduced levels of PTSD one month out. However, a small cohort and comparative study by Sliva (2020) found no significant difference in PTSD symptoms and depression, although did find better outcomes of mental well-being and reduction of negative emotions such as anger and self-blame in victims that participated in RJ. These contradictory findings are congruent with a systematic review conducted by Lloyd and Borrill (2020, p. 85) that reported mixed findings and “only moderate evidence for the claim that RJ reduced post-traumatic stress disorder in victims of crime.”
Offender Accountability and Reintegration
Most comparison studies, meta-analyses, and systematic reviews have examined the impact of RJ on reoffending when compared to conventional justice system practices. The majority of empirically robust studies, as well as most meta-analysis, have found no difference or a small to moderate decrease in reoffending for those that participate in RJ compared to those that do not (Piggott & Wood, 2018; Strang et al., 2013; Wilson et al., 2017). Far fewer studies have found any statistically significant increase in reoffending for RJ groups (Roy, 1993; Sherman et al., 2000; URSA Institute, 1993).
Some comparison research also suggests the crime-reducing effect of RJ, when present, may decrease over time. In the IJRJE studies, the first follow-up periods were six months and 12 months, with rearrest for the RJ group lower than for the control group (McGarrell, 2001). These findings were the same in a 24-month follow-up study, however the crime reduction effect of RJ was more salient in the first three to four months during the 24-month follow-up period (McGarrell & Hipple, 2007), indicating lack of a longer-term crime reduction effect of RJ. Indeed, in the 12-year follow-up period, there was no significant difference in the rearrest rate between conference and control groups (Jeong et al., 2012).
Aside from reoffending outcomes, researchers have examined other measures of offender accountability and/or reintegration in RJ against conventional court practices. These include payment of monetary restitution to victims, program and agreement completion of offenders, and surveys or interviews to assess participant perceptions of offender’s willingness to take accountability and/or demonstrate responsibility for harms they have caused. In terms of monetary restitution to victims, existing research is mixed on whether RJ outperforms conventional justice practices in terms of restitution compliance, with some studies finding higher compliance for RJ (Latimer et al., 2005; Strang, 2002; Umbreit & Coates, 1992), and others not (Roy, 1993). Notably, comparison studies on restitution compliance also range widely in rates of completion with some studies finding over 90% restitution compliance and others finding far less. This likely reflects jurisdictional differences in the awarding and compliance mechanisms of restitution, but such differences may also be a result of differences in how RJ processes arrive at and determine appropriate restitution. This is an area that requires further study, particularly as many victims of crime report that financial restitution is one of their most significant needs (Strang, 2002). The difficulty in comparatively assessing payment of restitution between RJ and conventional court practices is also confounded by the fact that RJ programs allow and encourage offenders to do work directly for victims or engage in community service in lieu of restitution at the request of the victim (Boriboonthana & Sangbuangamlum, 2013; Rossner et al., 2013; Strang et al., 2011). In such cases, these might not be measured as a restitution “outcome,” but may nevertheless reflect greater opportunities for victims that participate in RJ to receive other types of material restitution than financial payment, as well as opportunities for victims to request other types of “symbolic restitution” such as community service.
Finally, some comparison studies have also measured offender experiences between RJ and conventional court practices. Most of these studies have involved questions of participant perceptions of offender accountability. Comparison studies (Calhoun & Pelech, 2010; McCold & Watchtel, 1998; Shapland et al., 2006) and a meta-analysis (Wilson et al., 2017) have found that victims that participate in RJ were more likely to report that offenders were held accountable than victims who participated in conventional court practices. Research from Kim and Gerber (2012), who reanalyzed the RISE data, found that young people that participated in RJ perceived the process as more beneficial for their ability to repay the victim and society, and feel and demonstrate remorse, than those who participated in conventional court practices.
Explaining Differences in Experiences and Outcomes for RJ Participants
Empirical research has also looked at how and why RJ meetings work well for participants, and reasons they may not. This research has examined aspects of the RJ process (e.g., preparation, storytelling, apology, and agreement), offender characteristics (e.g., prior offending and demographic variables), offense type, quality of facilitation, and other factors that may be associated with better or worse experiences and outcomes for participants in RJ meetings.
In the case of offenders, so-called “variation” studies have explored elements of RJ meetings that may lead to reduced reoffending. Key variation studies have found that when RJ interventions are memorable to the offender, when outcomes are achieved through genuine consensus between parties, and when offenders offer sincere apologies, further offending is less likely (Hayes & Daly, 2003; Maxwell & Morris, 2001).
Other research has examined differences in the demonstration of accountability by offenders, a key aim of RJ meetings. Much of this research has been on young offenders which, as Suzuki and Wood (2018) note, may demonstrate markedly different levels of emotional maturity, verbal, and nonverbal communication skills—all of which are central to the complex interactional and performative nature of dialogue-driven RJ meetings. Several studies have found that offenders’ accounts of their actions and the “taking of responsibility” for harms they have caused may be highly variable. Hayes’ (2006) research on youth conferencing in Australia found many young people struggle with the “competing demands” of giving an adequate accounting of their actions while also demonstrating sufficient remorse or sincere apologies to victims. Noting that “offenders’ speech acts in a youth justice conference may drift from apologetic discourse to mitigating accounts and back again”, Hayes (2006, p. 378) concluded that these “speech acts may not convince victims of offenders’ ‘worthiness’ (Tavuchis, 1991) but instead may be seen as attempts to acknowledge blame but deflect shame”. Bolitho’s (2012) research on RJ meetings in New South Wales found about half of young people struggled to express themselves in conferences in terms of conveying basic information related to their offenses or the harms they had caused. Research from Northern Ireland has likewise found that about half of young people were not able to engage in storytelling necessary for “full account of the offence” due to their “relative youth, nervousness, learning or behavioural difficulties, anger, defiance and/or lack of recall” (Beckett et al., 2005, p. 10).
The offering and perceived sincerity of apologies by offenders also varies in RJ meetings. In some cases this has been related to the nature of the offense, for example in Daly’s (2008) research on girls “punch ups,” where there was a notable degree of victim-offender overlap and reticence on the part of many offenders to apologize. In other cases, for example in research on youth offender panels in the U.K., interviews and observations of young people in RJ meetings found the “requirement to apologise in front of a group of adult strangers was perceived by many of the young offenders as a very difficult, potentially humiliating experience” (Newbury, 2011, p. 262). Newbury noted this was particularly true for older, male teenage offenders and offenders who exhibited low self-esteem. Problems in the offering of apologies has also been found to be a problem in cases of written apologies to victims. Research from Choi and Severson (2009, p. 817) observed that young offenders often struggled “to come up with the letter of apology,” and some letters were “very short, less than a half page,” making victims feel that the apology was not genuine.
Difficulties in accountability and in the offering of apologies may be related to issues of poor oral language competency and nonverbal communication skills, particularly in young people. Youth offenders frequently demonstrate poorer oral language competency than their nonoffending counterparts or even adult offenders (Hopkins et al., 2016; Snow & Powell, 2012). Within the context of highly interactive and dialogue-driven RJ meetings, Snow (2013, p. 19) suggests these may be a “second language” environment for youth offenders, where poor language competency may be interpreted by other participants as “undesirable behaviors, such as rudeness, disinterest, poor motivation, and lack of willingness to engage.”
Nonverbal communication skills have also been found to impact the quality and outcomes of RJ meetings. Rossner (2011) has documented the important role that body langue, physical gestures, eye contact and other nonverbal cues play in demonstrating positive emotions and a willing to repair harms caused by offenders. Several studies (Campbell et al., 2006; Choi & Severson, 2009; Sanger et al., 1999) have found that these gestures and cues are difficult for some young people in particular, with Choi and Severson (2009, p. 819) noting that victims questioned the sincerity of apologies when young people were not sufficiently able to engage in “non-verbal cues such as looking the victim in the eye, appearing to look remorseful in facial expressions, [or] speaking with a tone of respect.”
Gap Research on Restorative Justice
In the social sciences, “gap studies” are generally related to identifying gaps in existing literature on a social phenomenon, and then orienting a research program toward addressing identified deficits of knowledge. In the case of RJ, however, much of this has taken the form of investigating the normative assumptions and sometimes ideal claims of RJ advocates against “on the ground” experiences and outcomes of RJ meetings for participants.
Kathy Daly’s (Daly, 2001, 2002, 2003; Daly et al., 1998) work in this area is notable for investigating gaps between the ideal claims of some RJ advocates and the delivery of RJ on the ground. In research on the use of YJC in South Australia, Daly (2002, p. 70) found that compared to high levels of procedural justice, “restorativeness” was only observed in “30 to 50 percent of [RJ] conferences.” In addition, victims perceived offender apologies to be sincere in only about 30% of the cases. No apology was given at all in another third of the cases. When young people were asked why they did apologize, “27 per cent said they didn’t feel sorry but thought they’d get off easier, 39 per cent said to make their family feel better, and a similar percent said they felt pushed into it” (Daly, 2003, p. 224). Also, young people demonstrated some form of remorse only about half of the time, and more than half of the young people (57%) reported the victim’s story had little or no effect on them. Young people also reported their primary interest in attending the YJC was to improve or protect their own reputations more than to repair harms they had caused to victims. Correspondingly, only about a third of victims reported the offender’s story or explanation of events had any positive impact on them.
Daly’s larger argument was not that conferences do not “work.” Rather, conferences did appear to work well for most participants in terms of the procedural justice elements of the meeting. Victims and offenders both reported high levels of fairness and respect from justice authorities involved in the conference (over 90%), and over 80% reported the way the conference agreement made was fair. Daly’s point, rather, was that “restorativeness”—the turning of each party toward each other in words or gestures—is far more difficult to achieve than is often purported in existing RJ literature, even when they may be higher levels of satisfaction with procedural justice.
Such gaps have been well-documented in subsequent empirical research. As noted above, some offenders and in particular young people, may struggle to give satisfactory accounting of their actions to victims (Beckett et al., 2005; Bolitho, 2012). They may refuse to apologize (Newbury, 2011) or, when offered, apologies may be seen as insincere (Choi & Severson, 2009). Victims may be marginalized in the decision-making process despite their wish in order to prioritize offender rehabilitation (Zernova, 2007). Victims may also be disempowered and revictimized by receiving pressure to accept what they do not want (Choi et al., 2013).
Such issues are prevalent throughout existing empirical research. At the same time these issues generally reflect a smaller percentage of overall victim or offender experiences and outcomes. Rossner and Bruce (2018) make this point well in a recent study that examined the trajectories and outcomes of 34 RJ conferences in New South Wales, Australia. In these conferences, group dynamics, participant emotion, and the ritual progression of the conferencing stages were found to be key features in the movement toward or away from group consensus. Moreover, in some cases conferences that started strong tended to falter later on, and other conferences where there were initial problems were able to be resolved. Contrary to the idea of “successful” and “unsuccessful” conferences, Rossner and Bruce (2018) set forth a more refined typology of outcomes—mythical, civil, salvaged, draining, and divisive conferences—with a smaller number being mythical (n = 8) or divisive (n = 5), but most (n = 21) falling somewhere in between. These findings reflect other existing empirical research (Bolívar, 2019; Choi et al., 2012; Daly, 2002; Sherman & Strang, 2007) in demonstrating that most RJ meetings are usually neither “nirvana stories” nor failures. Rather, such meetings are often difficult spaces of dialogue around questions of offender accountability, recognition of harms, and making amends for these harms, where some of these goals are often achieved to the satisfaction of participants, but usually not all.
Integrating or Institutionalizing Restorative Justice?
In addressing harms caused by crime, restorative justice approaches exist within the institutional structures of youth and adult criminal justice systems in most countries where they are used. Since its inception, however, there has been ambivalence and tensions within the RJ “movement” about the appropriate role and function of RJ within these systems. Maximalists, for example, agree with minimalists or “purists” that conferences, VOMs, and circles are central to meeting the needs of primary stakeholders. But they also see opportunities for a more restoratively oriented justice system, in cases where victims do not want to meet, for victimless crimes and minor offenses, and in the ability of justice agencies to reorient sanctions such as restitution, community service, community supervision, and corrections toward more restorative goals (Bazemore & Walgrave, 1999).
At the same time, minimalists voice concern about the watering-down of RJ and the potential for it to be co-opted in ways that usurp ownership of conflict and direct participation of stakeholders, especially victims, in lieu of other criminal justice system goals (McCold, 2004). The implications of these debates are poignantly reflected in research that demonstrates the increased availability of RJ in many countries, but also a growing number of recognized problems within its embeddedness in criminal justice systems.
The overall growth and availability of RJ in most countries has depended in large part on its integration within youth and adult justice systems. While legislation directing the use of RJ remains less common, legislation allowing for the use of RJ at national, state, or municipal levels has grown significantly in the last three decades (Gavrielides, 2016; Larsen, 2014; O’Mahony & Campbell, 2006; Sliva & Lambert, 2015; Tomporowski, 2014). Many jurisdictions have also implemented RJ as part of diversionary or victim-service programs, even in cases where they may be no existing directive legislation.
This increasing integration into the criminal justice system has resulted in large growth in the availability of RJ to victims, offenders, and communities. This is certainly positive, especially in terms of increased access to justice for victims, as research shows that most victims prefer RJ to conventional court practices. However, this has also come with institutional challenges and problems that may dilute or subvert RJ’s primary aims, particularly victim participation and redress. For example, several studies have found problems where RJ programs appear to be focused more on offender’s needs than those of victims (Choi et al., 2013; Hoyle & Rosenblatt, 2016; Strang, 2002; Williams & Iaone, 2021; Zernova, 2007). Equally problematic is the relative lack of victim involvement in many RJ meetings, with low or very low levels of victim involvement in some programs and jurisdictions (Crawford, 2007; Doak & O’Mahony, 2006; Shapland et al., 2006; Thornton, 1993).
Embedding RJ within youth and adult criminal courts has also resulted in cases of emphasis on program efficiency over quality of practice. In what he called the “McDonaldization” of RJ, Umbreit (1999) noted several examples from the United States where program efficiency or outcomes of VOMs were used to coerce participants into attending or agreeing to outcomes, where preparation for RJ meetings was absent or insufficient, and where outcomes of VOMs were focused primarily on determining monetary restitution. Other research has documented pressures placed on RJ facilitators and programs to adhere to performance indicators such as effective case processing or case clearance rates in ways that compromise preparation with participants, require victims to meet in times or places that are not convenient or before they may be ready, and focus too much on RJ agreements without sufficient attention to dialogue or the needs of participants (Barnes, 2015; Bolívar, 2015; Crawford & Newburn, 2003; Gavrielides, 2015; Hoyle & Rosenblatt, 2016). Lack of sufficient time for preparation is especially detrimental for victim participation, and one of the reasons why victims may decline to participate in restorative justice encounters is lack of clear understanding of the aims and process of RJ (Hoyle, 2002).
The institutionalization of RJ within the criminal justice system may also leave it suspectable to what Suzuki and Wood (2017a) have called “administrative co-options.” These include points at which decision-makers in the criminal justice system act as gatekeepers for RJ, or take over the RJ process for other criminal justice system goals. Most RJ programs have a referral process from other agencies such as the police or courts, and RJ programs may face difficulties obtaining referral from “gatekeepers” in the criminal justice system (Archibald & Llewellyn, 2006; Laxminarayan, 2014). Some research on police-led conferencing has also found problems with police officers taking over the RJ meeting by not adhering to the dialogue-driven process or disagreeing with participants about RJ agreements (Hoyle & Rosenblatt, 2016; O’Mahony & Doak, 2004).
Restorative Justice and Social Justice
Within the RJ movement, there are differences and debates not only between minimalists and maximalists, but also regarding the use and ability of RJ as a mechanism to address social injustices and inequalities, particularly as these are manifest in the criminal justice system. This includes especially the overrepresentation of racial, ethnic and First Nations people in the criminal justice system, and the pervasive problems of domestic and family violence (DFV) and sexual violence (SV).
Many early RJ advocates came from social justice movements focused on prison abolition, nonviolence, and social equality, and RJ was seen as a means of creating a more socially just approach to the harms caused by crime (Sullivan & Tifft, 2001). Since RJ’s inception, however, the social inequity of crime and corresponding justice responses to these problems have remained, and in some cases become worse. From the 1980s, incarceration rates have soared not only in the US, which remains much higher than any other country, but also significantly increased in Australia, New Zealand, the U.K., and some European nations. The overall climate of criminal justice in Anglophone countries has become more punitive since the late 1970s and early 1980s, with significant disproportional effects on racial, ethnic, and First Nations peoples and communities.
Social awareness and public dissatisfaction with ongoing forms of systemic racism and gendered violence are clearly reflected in the global Black Lives Matter and #Metoo social movements. These movements (and other affiliated groups and allies) see minority overrepresentation and gendered violence as rooted in long histories of colonialism, slavery, segregation, patriarchy, and classism. Both have also given primary focus to confronting criminal justice practices that are ineffective or complicit in these and other forms of social injustice.
Yet the role and potential of RJ to address larger systemic injustices remains unclear. Some advocates see RJ as well-suited to play a primary role in confronting such injustices, particularly as these relate to the criminal justice system, but potentially beyond this as well in terms of political, social, and economic inequalities (Johnston, 2008; Sullivan & Tifft, 2001). Other RJ advocates such as John Braithwaite (1996, p. 17), have cautioned that “Restorative justice does not resolve the age-old questions of what should count as unjust outcomes. It is a more modest philosophy,” which he argues “settles for the procedural requirement that the parties talk until they feel that harmony has been restored on the basis of a discussion of all the injustices they see as relevant to the case.”
In one respect these represent different definitions and views of restorative justice, discussed in the beginning of this chapter. Such differences are inevitable, and have also been central to the growth of RJ as a justice movement (Johnston, 2008). In another sense, however, there is arguably unease within the RJ movement and literature regarding how restorative justice practices may function, if at all, to redress larger social inequalities or injustices. Over a decade ago, Stubbs (2009, p. 107) noted, “Few empirical studies have examined how social relations such as gender, race, class or age are expressed in RJ.” Other scholars have also more recently noted the relative lack of attention to race and ethnicity in RJ research (Davis, 2019; Gavrielides, 2014; Wood & Suzuki, 2016), particularly the dearth of empirical research on how RJ may, if at all, impact racial, ethnic, and First Nations overrepresentation in the criminal justice system.
It is not the case that issues of minority overrepresentation and gendered violence have been ignored. RJ literature regularly makes reference to these and other social justice issues, and significant consideration has been given to ways that RJ may potentially mitigate or redress these problems. Rather, the problem remains one of far less empirical research relative to claims made that RJ could help achieve social justice goals within the context of the criminal justice system.
Restorative Justice and Racial, Ethnic, and First Nations Overrepresentation
The overrepresentation of racial, ethnic, and First Nations peoples in the criminal justice systems of many countries is well-documented. There is also fair consensus that overrepresentation exists beyond levels accounted for by correspondingly higher rates of offending by overrepresented groups (Beck & Blumstein, 2018; Cunneen, 2006; Mitchell, 2005; Uhrig, 2016).
The few studies that exist do not provide a clear answer to the question whether RJ does better than conventional justice practices on any measure or level—diversion, reoffending, or sentencing—for racial, ethnic, or First Nations offenders. Some studies have found better outcomes compared to conventional court sanctions (de Beus & Rodriguez, 2007; Luke & Lind, 2002; Maxwell et al., 1999; Rodriguez, 2005). However, more comparison studies have found no difference (Bergseth & Bouffard, 2007; Fitzgerald, 2008; Jones, 2009; Poynton, 2013; Smith & Weatherburn, 2012) or worse outcomes (Strang & Sherman, 2015) for racial, ethnic, and First Nations peoples. Variation, cohort, and experimental studies on RJ meetings have also found no differences (Hayes, 2005; Hipple et al., 2015) or worse outcomes for nonwhite offenders (Allard et al., 2010; Hayes & Daly, 2003; Hipple et al., 2014; Little et al., 2018; Stewart et al., 2008).
Some advocates also see promise in the ability of RJ to redress overrepresentation in its use as an alternative to prison. Evidence to date does not support these claims within Western and especially Anglophone countries, however. Research from Australia, New Zealand, the U.K., and the US demonstrates few examples of RJ programs being used as alternatives to incarceration, or any other evidence of the use of RJ to effectively reduce incarceration rates (Wood, 2015). A more recent study from China, however, has found evidence of some reduction in sentencing severity related to the use of RJ (Zhang & Xia, 2021), and it may be the case that RJ is being in other countries as well as an alternative to prison or as a mitigating factor in sentencing decisions.
Finally, the relative dearth of comparative and other empirical work on RJ outcomes for racial, ethnic, and First Nations peoples may be particularly problematic in light of claims by some advocates that RJ reflects “Indigenous” forms of justice or may be more culturally appropriate for First Nations participants and communities (e.g., Consedine, 1995; Weitekamp, 1999). In the past two decades, there has been significant criticisms of such claims (Blagg & Anthony, 2019; Tauri, 2014), as well as a growing amount of research to suggest state-designed and delivered RJ practices are not as empowering or useful for First Nations peoples as purported by some advocates (Moyle & Tauri, 2016; Vieille, 2013; Young, 2019). However, some research also points to successful uses of RJ programs when they have been developed and implemented by First Nations peoples and communities with appropriate self-determination and resourcing (Coker, 2006; Jarrett & Hyslop, 2014; Roguski, 2020).
Domestic and Family Violence, Sexual Violence, and Restorative Justice
DFV and SV are the most globally pervasive forms of violence against women and children (World Health Organization, 2013). Since the 1960s, there has been growing social awareness of the scope and severity of these types of violence. However, predominant responses including criminal justice sanctions and civil protection orders remain limited in their ability to reduce offending and reoffending, promote offender accountability, ensure victim safety, and provide meaningful responses for victims (Daly, 2011; Stubbs, 2004). Calls for reform of conventional justice responses to DFV and SV remain strong, but over the past four decades there has also been increasing support for innovative responses to these types of offenses, including restorative justice (Daly & Marchetti, 2012).
Advocates for the use of RJ in cases of DFV and SV point to several strengths compared to conventional justice responses. These include the informal and flexible of RJ processes, the provision of safe spaces for victims to be heard by the justice system and the perpetrator, and the inclusion of victim input in justice outcomes (Cheon & Regehr, 2006; Daly, 2011). At the same time, many feminist scholars, DVF/SV service providers, and victim’s rights advocates have been critical or cautious of the use of RJ in such cases (Proietti-Scifoni & Daly, 2011; Stubbs, 2004). These offenses are often not “one-off” incidents. They may involve serious imbalances of power, including the use of coercive control by the offender. As such there is concern that offenders may use or manipulate the RJ process to gain access to the victim, employ subtle forms of control or coercion not readily perceptible by the RJ convenor or other parties, or use apologies to facilitate the beginning of another cycle of abuse and victimization (Miller & Iovanni, 2013; Proietti-Scifoni & Daly, 2011; Stubbs, 2004). In cases of SV, there is also concern that offenders may use the storytelling phase of RJ meetings to seek further gratification from victim’s recountings of the harms caused to them (Jeffries et al., 2021).
Despite the growing and increasingly common use of RJ for these types of offenses in many countries, there is a limited amount of empirical or evaluation studies on experiences or outcomes for victims or offenders for cases of DFV or SV. This research is not easily generalizable due to different methodologies, different types of RJ programs (e.g., conferencing, VOMs, circles, and hybrid programs), and the use of RJ in different programs and jurisdictions. In the case of DFV, some studies have found RJ programs effectively address concerns of victim safety, encourage victims to have their stories heard by the offender and justice system, and empower victims to make decisions for their needs and those of their children and other dependents (Coker, 1999; Dissel, 2003; Hargovan, 2010; Kingi et al., 2008; Pelikan, 2010; Pennell & Burford, 2000). Some RJ programs have also demonstrated decreases in FDV following participation in RJ (Mills et al., 2019; Pennell & Burford, 2000). However, comparison studies using sufficiently rigorous methods on this question are limited, with one study finding that RJ performed no worse than conventional court sanctions (Mills et al., 2013), and the other known study finding significant reductions in reoffending for the RJ group at two years (Mills et al., 2019).
Research on the use of RJ for DFV has also found problems in several program evaluations. In some cases, victim safety has not been ensured before, during, or after RJ interventions, leaving victims in dangerous situations (Cameron, 2006). Research also points to cases where victims have been coerced to participate in RJ programs, received poor preparation and support (including access to social services), had their voices devalued or marginalized in favor of the perpetrator, and been blamed for their own victimization (Cameron, 2006; Coker, 1999).
As with DFV, empirical research on participant experiences and outcomes for the use of RJ in cases of SV remains limited, even where the use for such offenses is increasing (Mercer et al., 2015). As in its use for DFV, the use of RJ for SV also remains controversial, particularly in terms of the needs and risks of victim-survivors. Several program evaluations and studies of the use of RJ for SV do exist (Daly, 2006; Jülich et al., 2010; Koss, 2014; Loff et al., 2019), and most of these have given primary focus to experiences and perspectives of victim-survivors who have participated in RJ. Again, while generalizability is difficult, most of these studies have found benefits to victim-survivors that participated in RJ, including having their voice heard by offenders, validating the reality of harms caused to them, and regaining a sense of control and agency. None of these studies suggest RJ delivers full justice to victims, but a common theme in most of these studies is also a relative sense of some justice for many victim-survivors, as opposed to no justice or even revictimization in conventional justice responses to sexual offending.
Finally, most RJ programs for DFV and SV that have been evaluated are also not stand-alone RJ approaches. Rather, most partner with victim services and support agencies, and/or accountability and support mechanisms for offenders. In some cases this has involved blending the delivery of RJ with other types of programs, for example in the addition of circles of peace interventions to a batter invention program in Utah (Mills et al., 2019). Existing literature and best-practice guidelines on these programs also suggests that screening and eligibility criteria, intensive preconference preparation, and postconference follow-up (usually in conjunction with other support services) are all crucial to RJ goals of victim redress and empowerment, and offender accountability (Mercer et al., 2015).
Future Directions and Concluding Remarks
Contemporary uses of RJ are over four decades old. In this time, RJ has developed from a small and discursive set of alternative justice practices into a global justice movement used in well over a hundred countries. Few other justice reform movements have achieved such growth in such a short period of time. And it is difficult to think of any other type of program or legislation that has had more of an impact on victims’ ability to get information about the harms caused to them, seek accountability directly from offenders, and participate in the outcomes of their own cases. These are notable achievements, made more so by the increased growth of the use of RJ for serious violent crime, including DFV and SV.
Another notable achievement has been the development of practices that are better for many victims while also being seen as more legitimate and fairer by many offenders. While it is still unclear the degree to which offender perceptions of procedural fairness and institutional legitimacy result in decreases in reoffending, there are other important reasons why procedural justice is important, particularly in an era where criminal justice agencies are under significant public scrutiny. Evidence of and participation in institutions that work fairly and transparently is crucial for all public institutions, but doubly so for institutions that have the power to deprive liberty and property.
These notable benefits and the growth of RJ has also occurred in an era of increased punitiveness in the use of punishment and especially incarceration in many countries. As Honderich (2006, p. 3) has noted, “punishment has become more punitive and there is more of it.” To date RJ has not realized the transformative agendas set forth in much of its formative literature—as an alternative to state-delivered retributive uses of punishment, as a means of reducing incarceration, or as redress for socially unjust and inequitable responses to crime and offending. These limits are not surprising however, particularly where RJ generally lacks fact-finding mechanisms that remain the purview of policing agencies, and where its growth and expansion has come largely as a result of its embeddedness within existing criminal justice systems in most countries where it is used. That RJ has not realized these transformative goals is arguably less a failure, however, than a recognition of some of the improbable promises set forth by some of its early advocates.
It may also be possible these transformative capacities of RJ will yet materialize. While this chapter has given focus to the use of RJ within youth and criminal justice contexts, significant growth and expansion of RJ in the last two decades has occurred in other spheres of social life—in particular education, health and mental health, and workplaces. RJ is also now being used in contexts of redress for historic institutional abuses, and in postconflict and transitional justice settings. These spaces afford RJ more flexibility, and allow it to function more proactively, than its use within criminal justice systems. There is focus in some educational programs, for example, to develop and use RJ practices to counter the “school to prison pipeline” for racial, ethnic, and First Nations young people (Schiff, 2018). This chapter has looked at the use of RJ within the more limited context of youth and criminal justice, but the story of the next forty years of restorative justice is likely to be one where such practices continue to vertically expand and grow in areas beyond criminal justice.
Such uses of RJ will also face many of the same challenges discussed in this chapter in relation to its use in a criminal justice context. While there is much hope and enthusiasm for its use in educational settings, for example, as Schiff (2018, p. 126) notes, “much published research on RJP [restorative justice practices] in schools comes largely from book chapters, non-peer-reviewed articles, practitioner, governmental or organizational implementation reports rather than rigorous academic research.” Rigorous empirical research is growing on the ability of RJ practices to reduce punitive and disadvantaging uses of discipline in schools (e.g., Karp & Breslin, 2001), but most of this literature remains speculative and the overall efficacy of these approaches is far from clear.
In thinking about the future of RJ within its use of criminal justice, what RJ will look like in four more decades is also less clear. While RJ has seen significant growth since its inception, the continued appeal of punitive populist responses to crime in countries such as Australia, New Zealand, the U.K. and the US have frequently resulted in RJ as being characterized as a “soft” response to offending by conservative policymakers. When the Liberal National Party won the 2012 Queensland election, for example, one of its first decisions was to abolish the use of court-referred YJCs. This in turn resulted in a significant decrease of YJC cases in Queensland (Childrens Court of Queensland, 2014), a state where YJCs had been widely used for two decades. In New Zealand, where FGCs have been used since 1989, there has also been sustained opposition from some victim’s rights organizations and “tough on crime” policymakers toward similar legislation for the use of RJ in cases of adult offending (Wood et al., 2021).
RJ also faces other challenges in the near future, many of which have been discussed in this chapter, in particular questions regarding its increased institutionalization, and also its relationship to social justice. It also faces questions of its adaptability to new and emerging frameworks of justice such as “trauma-informed” approaches to youth offending. RJ is often set forth as a normative framework of justice, with focus on developing accountability, empathy, and moral agency for young people. Trauma-informed research on youth offending, however, suggests that at least some young people offend and engage in antisocial behavior as avoidance or coping mechanisms for PTSD and other anxiety disorders resulting from abuse, neglect, and victimization (Ford, 2012). Such research also demonstrates rates of PTSD are much higher for youth offenders than for their nonoffending counterparts (Ford, 2012). How normative RJ approaches to dealing with the aftermath of offending may intersect with trauma-informed approaches to offending is not clear, as there has been very little published on this question to date. What is clear is that both approaches are growing rapidly in scope and use, particularly in the youth justice space. RJ research and theory will need to contend with the growing amount of empirical research that suggests normative approaches to youth offending may not be particularly beneficial for young people with substantial trauma symptomology. It will also need to contend more generally with the growing amount of research demonstrating efficacy and cost-effectiveness in some rehabilitative approaches and models, particularly where much RJ literature has been critical or dismissive of these in the past.
In this regard, while Howard Zehr (1990) proposed RJ as a new “lens” of justice some thirty years ago, what has transpired since is far more akin to a justice reform movement, especially in the criminal justice context. It is not the only reform movement, however, and others such as therapeutic jurisprudence and trauma-informed approaches also demonstrate innovative reforms. RJ, as defined by minimalists at least, is, already being blended with other innovative justice mechanisms and also demonstrated rehabilitative approaches that take into account criminogenic needs or trauma-informed frameworks.
This blending and hybridization of RJ is perhaps inevitable, but it is also necessary. Undoubtedly, there are and will always be cases where offenders simply make bad choices, and where normative approaches to dealing with offending are appropriate and sufficient. For these types of cases, the use of RJ as a diversionary mechanism demonstrates significant benefits compared to other normative conventional sanctions, particularly for victims, but also for offenders with motivation to make amends for harms they have caused. At the same time, half a century of research on offending has consistently demonstrated that a smaller number of offenders are responsible for a much larger amount of overall crime, especially violent crime, and these offenders often demonstrate significant emotional, psychological, and social needs beyond the capacity of RJ interventions.
In these cases, RJ approaches will likely continue to merge and blend with other innovative and needs-based approaches to offending. But RJ is not therapy or rehabilitation, and what differentiates RJ from other innovative approaches or frameworks is not any notable reduction in reoffending—indeed RJ does not perform as well or cost-effectively as many other types of interventions in this respect (Washington State Institute for Public Policy, 2020). Rather, what differentiates RJ from other approaches is the central role afforded to victims to participate in and make decisions about the outcomes of their own cases, and the opportunity for offenders to make amends directly to victims for the harms they have caused. Substantial research demonstrates the value of these two processes, which are often less than perfect in practice, but also often more meaningful and helpful for victims in particular than conventional court processes.
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1. Remarking on this problem, in a meta-analysis of 60 studies on the use of RJ for young offenders, Wilson et al. (2017, p. 2) noted that while RJ programs “showed a moderate reduction in future delinquent behavior relative to more traditional juvenile court processing,” they also found that “results were smaller for the more credible random assignment studies.” This is in line with other research that suggests more rigorously designed studies have, on the whole, found less appreciable impacts of RJ on offenders (Piggott & Wood, 2018).