Basic Principles of Restorative Justice (Daniel W. Van Ness)
For presentation to “Conciliation Justice in Bulgaria – The Role of the Community in the Restoration of All Those Affected by Crime and Imprisonment
November 11, 2015
It is a privilege to be meeting with you today, even if it is by way of Skype. I wish that I could be there in person to renew friendships with those of you I have met and to make friends of the rest of you. I trust that your time together will be productive for you and for your country.
I have been asked to speak about the basic principles of restorative justice. Let me do this by addressing what one might think would be a simple question:
What is restorative justice?
When many people think of restorative justice, they think of victim offender mediation programs. These programs involve a trained facilitator who helps the victim and offender discuss what the offender did, the harm it caused the victim and what steps can be done to begin making things right again. Sometimes family members, friends and even community members participate as well.
The modern idea of restorative justice first emerged around 35 years ago when Howard Zehr and others who were using these meetings as part of the criminal justice process began to ask why the results seemed so much more just to the parties than did what came out of normal court processes. They called this new justice “restorative justice.”
So it is easy to see how victim offender mediation has been closely linked to the idea of restorative justice. It is what the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, which the UN adopted in 2002, calls a “restorative process”. But it is important to understand that restorative justice is not a program. It is bigger than that. In fact, it is a theory of justice that not only has given rise to programs like victim offender mediation, but can guide public policy.
So how do we define this theory? You may be surprised to hear that there is no generally-accepted single definition of restorative justice. Instead, there are three similar but distinct conceptions. They overlap each other significantly, but they are also different in important ways. They grew out of different challenges to limitations in contemporary criminal justice.
The first challenge was this: If crime causes harm to victims and communities, then justice should repair that harm. But criminal justice systems seem instead to be preoccupied with inflicting equivalent harm on the offender (retribution) or with doing something to the offender that makes it less likely that he or she will cause more harm in the future (deterrence or rehabilitation). So the first definition of restorative justice, advocated by Walgrave and others, focuses on repairing the harm caused to the victim and community. Society has a responsibility to require – and help – offenders make amends and, when no offender has been identified, to help the victim recover through other ways.
We can call this the reparative definition of restorative justice because it focuses on repairing the harm caused by crime.
The second challenge to contemporary criminal justice was made by Nils Christie. He argued that crime is property and is rightly owned by the victim and offender. But the state has “stolen” crime and consequently it, not the victim and offender, decides what should be done in response. So the second definition of restorative justice focuses on giving victims and offenders a voice in deciding what should happen. As Wachtel and McCold have said, justice is best done with people rather than to them or for them. There are a number of ways this inclusion could be achieved, but an obvious way is to have the parties meet together in restorative mediation, conferences or circles to find resolution.
We can call this the encounter definition of restorative justice because it brings the parties together in a facilitated meeting.
Notice that a restorative encounter, such as victim offender mediation, typically includes discussion about how to repair the harm to the victim. So the encounter definition can include the idea of repair. But the opposite is not necessarily true. We can apply the reparative definition even when victims and offenders are not ready, willing or able to meet. For example, an offender could pay restitution to a victim without meeting that victim. And if we don’t know who the offender was, the reparative definition would encourage us to provide victim support through governmental or nongovernmental bodies.
So the reparative conception of restorative justice has a much larger potential application than the encounter definition.
The third challenge to criminal justice is also a challenge to the other two definitions of restorative justice. How can we speak of justice after a crime without addressing the causes of crime? The third concept of restorative justice, what we could call the transformative definition, is the most ambitious of the three. Under this view, promoted by Morris and others, the goal of restorative justice is not merely to repair but to transform – transform individuals, relationships and structures. This idea has resonated because many victims and offenders experience a degree of transformation during restorative encounters. They move from fear and hostility toward the other party to understanding and sometimes even empathy and acceptance. In fact, some find that the antagonistic relationship that existed before the meeting has shifted to one of friendship by the time it ends. In other words, they have been transformed.
Each of these three definitions captures important elements of restorative justice. I hope you can see how they are similar to each other but have important differences.
So what is restorative justice? I suggest that definitions generally include hints of all three of these conceptions, but differ in the priority given to each.
The definition Prison Fellowship International uses of restorative justice is this: Restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished when the parties themselves participate in cooperative processes, and when that happens, it can lead to transformation of people, relationships and structures.
In other words, this is a reparative definition that recognizes that the best opportunities for repairing harms happen when the parties meet together – encounter each other – to discuss how to do that. When this happens, there is the possibility of transformation. Repair is the first priority, encounter is a means to that end, and transformation may result.
Why have we chosen this set of priorities? Because our interest is in public policy, not just programs. WE believe a reparative definition lends itself better to public policy than do the encounter or transformative definitions.
Where are restorative justice programs applied?
The UN Basic Principles on use of restorative justice say that restorative justice programs may be used at any stage of the criminal justice system provided national law allows it. And in fact, this happens. It is used by police instead of making an arrest. Prosecutors use restorative programs instead of charging suspects. Judges invite victims and offenders to meet before they impose a sentence. Sometimes they make the meeting part of the sentence. Prison officials allow victims to come into prisons to meet with their offenders. Parole and probation officers facilitate meetings between offenders, their families, victims and communities to prepare for their reintegration into the community. In all these instances, the meetings are voluntary for both the offender and the victim and are carried out in a safe environment with skilled facilitators.
There has also been a growing expansion of restorative processes outside the criminal justice system. These include at schools, workplaces, in neighborhoods, faith communities and environmental conservation disputes.
Restorative justice places a high value on the relationships between people and within society. Llewellyn captured this when she wrote, “We live in a relational universe.” This is why restorative justice is a powerful. It draws on and builds up relationships, which after all are part of the fabric of life itself. Relationships are core to who we are. Restorative justice helps us restore disrupted relationships.
We also live in a moral universe. There are certain core values to which we agree. Let me give you an example. The reason that homicide rates are a good way of comparing rates crime between countries is that murder is the highest reported crime in virtually all countries and murder is against the law. It is acknowledged as wrong everywhere.
The legal definition of murder may vary, and certainly enforcement does. Some governments or powerful organizations may appear to murder with impunity. But the argument is never made that murder is right. At most the defense is put is that it was necessary to accomplish a greater good. And even then future generations and international law frequently end up challenging that justification.
Why is this important as we discuss restorative justice? First, acknowledging a moral universe gives us a framework in which to speak of justice and injustice. Injustice is wrong and needs to stop. Those who benefit from it need to be held accountable and those who are harmed should be cared for.
Second, it allows us to judge behavior without drawing final conclusions about the character of the people who did the deed. We can assess the actions of others but we do not need to determine whether those who do wrong are “good” or “evil”. Some peoples’ lives appear to be so intertwined with either good or evil we call them saints or monsters. But within every apparent saint is the potential to do wrong. In every apparent monster lies the potential to do good. This is why restorative justice is so effective as a means of moral education. The injustice the parties discuss is connected to a broad, communal sense of justice even as it is applied to the specific circumstances of that crime.
Let me conclude with a somewhat philosophical comment. I mentioned at the beginning of my talk that restorative justice was developed by Howard Zehr. It turns out that he had found that name in a collection of articles by psychologist Albert Eglash published in 1958. Eglash’s source for the term was a 1955 book, The Biblical Doctrine of Justice and Law. It refers to restorative justice in a discussion of the intersection of justice and love in Christian teaching:
This aligning of justice and love is something which it is the peculiar task of Christian believers to promote. Restorative justice alone can do what law as such can never do: it can heal the fundamental wound from which all mankind suffers and which turns the best human justice constantly into injustice, the wound of sin. Restorative justice, as it is revealed in the Bible, alone has positive power for overcoming sin.
That was 1955. Sixty years later, restorative justice is a secularized concept. But since this conference is sponsored by Prison Fellowship Bulgaria, a Christian organization, I thought it would be appropriate to acknowledge the Christian roots of restorative justice and the challenge laid down by men and women in the mid-twentieth century to engage in healing wounds and transforming individuals and societies.