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Cavanagh, T., (1998). Adopting New Values for the Courts: What is Restorative

Justice? The Court Manager, 13(2/3). P. 24-27. Williamsburg, VA: National

Association for Court Management.

Abstract

What is restorative justice? Restorative justice was identified as a major trend in the

state courts for 1997. Yet, court managers as a whole know little about this process. The

principal focus, values, outcomes, and vision of both restorative justice and the present

system, called retributive justice, are explained. With this information, court mangers

and leaders can lead the development of clear mission and vision statements for their

organizations, incorporating the restorative and retributive justice values appropriate

for their communities. As a result, strategic planning will be focused on implementing

a vision based on these values.

* * * * *

Why is the criminal justice system of the United States failing at restoring peace

to our communities? The criminal justice system is based on retributive justice, which

focuses on the offender. The New Zealand courts were the first to use a process called

restorative justice, which involves balancing the interests of the offender, victim, and

community. What is restorative justice? What is our present system called? What are

values, outcomes, and visions of these two processes?

Restorative justice is a new concept for people in the United States. We are

familiar with the system of retributive justice, which is focused on answering the

questions of what laws were broken, who broke them, and then punishing the guilty.

Restorative justice recognizes three key parties to crime, the offender, victim, and

community. In an effort to serve the needs of these three parties, the criminal justice

system needs to be dedicated to restoration, healing, responsibility, and prevention.

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For example, in New Zealand juveniles are referred to Family Group

Conferencing after they admit their guilt to the court. If they do not plead guilty, the

case continues through the traditional court process. The Family Group Conference is

initiated by a trained mediator bringing together the victim and the offender, as well as

family, friends, and supporters of both parties. The conference begins with the offender

describing the incident. The impact of the crime is described by each participant. As a

result, the offender realizes the consequences of his or her behavior, and the victims get

to express his or her feelings. The victim describes his or her desired outcomes, and all

participants are involved in problem-solving how to repair the harm done. The session

ends with all participants signing an agreement containing expectations and

commitments. Sentencing Circles is a process focused on the community and usually

involving complex issues, such as gang activities. Other restorative justice activities

more familiar in the United States are victim impact statements, classes and panels,

victim offender mediation, community service, restitution, and community restorative

boards.

Currently, most restorative justice type activities are done by social services

agencies, schools, law enforcement, and probation departments. These activities share

three common elements: healing, victim offender mediation, and apology (shaming)

and reintegration. Marshall (1997) offered a definition of restorative justice, which is:

“A process whereby parties with a stake in the particular offense come together to

resolve collectively how to deal with the aftermath of the offense and its implications

for the future.” Howard Zehr and Harry Mika developed “signposts” to identify

restorative justice processes:

Focusing on harms suffered rather than laws broken.

Showing a balanced concern for the victim and offender and involving both in the

criminal justice process.

Working toward restoration of victims through empowerment and response to their

needs.

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Supporting the offender and simultaneously encouraging him or her to understand,

accept, and carry our their commitments to repair the harm.

Recognizing offenders’ need to fulfill obligations which are achievable, not punitive.

Providing opportunities for direct and indirect victim offender dialogue.

Involving and empowering the community through the judicial process, particularly

by increasing its capacity to recognize and respond to crime.

Encouraging collaboration and reintegration rather than coercion and separation

Paying attention to the unintended results of activities and programs.

Showing respect for the dignity of everybody, particularly victims, offenders, and

colleagues concerned with justice.

Today American courts are typically focused on retributive justice and the

offender and allow limited participation by victims though such programs as advocacy,

assistance, and restitution. The role of representative of the community is assumed by

the prosecutor, appearing on behalf of the people of the individual state or the United

States.

In 1966, Roger Warren, president of the National Center for State Courts, pointed

out, in 1996, the emerging trend towards a system of restorative rather than retributive

justice. That same year National Institute of Corrections Director Morris Thigpen noted

a transitional change is occurring in the criminal justice system involving themes of

restorative justice. In 1977 Nancy Gist, Director of the Bureau of Justice Assistance,

called for bridging the gap between the courts and the public. Building partnerships

between the local judicial system and communities by making the work of the courts

visible, accessible, proactive, and focused on victims will help to bridge this gap.

Restorative justice ideally involves bringing together the offender, the victim,

their families, and community representatives to devise a plan to make the situation

whole again. Such a model recognizes the violation of one person by another.

Contrasted with that philosophy is the current system in the United States of

retribution, which focuses on violations of law, fixing the blame, and punishing the

guilty. The courts of New Zealand made the most comprehensive use of restorative

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justice. The New Zealand system is a combination of ancient values, learned from the

Maori people, and modern insight.

As an example of implementing restorative justice values, the Colorado

Probation Services department adopted a vision of restorative justice, which “strives to

repair the damage caused by criminal behavior to the victims of crime, individually and

as a community. This may include financial reimbursement to the victim or victims, as

well as public service to the community in an attempt to ‘pay back’ the local community

residents.” The statement continues, “To be successful, offenders must also be

restored. They must learn how to respond positively and cooperatively to societal

norms, to become pro-social rather than anti-social.” The statement notes, “Neither

restorative justice nor modeling or pro-social behavior can be accomplished without

fostering a partnership with the larger community: the bench, the district attorney’s

office, the defense bar, social services, agencies who serve youth treatment providers

and agencies which provide educational, vocational and financial support to offenders

and their families.”

A Restorative Justice Conference was held in Denver in February 1988, and

Colorado probation department offices began implementing the vision of restorative

justice with the hiring of community liaison officers. The positions were funded with

grant money from two sources: the Victims of Crime Act (VOCA) and the Violence

Against Women Act (VAWA). Duties of the community liaison officers include

coordinating restorative justice activities already in place in the community, developing

new programs, and educating the public about restorative justice.

Court employees need to become familiar with restorative justice and the key

values of the process in order that the missions and visions of all segments of the

criminal justice system can be in alignment. By understanding the core values of

restorative justice, court managers possess the tools to evaluate the outcomes of non-

prison, community based or alternative sentencing programs beyond recidivism rates.

Admittedly, a set of shared values are yet to be developed for restorative justice. Some

values are emerging which can guide the courts.

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Retributive Justice

The focus of retributive justice is on the offender. Laws and punishment are the

core values. Outcomes are measured in terms of: 1) What law was broken, 2) Who

broke it, and 3) How should he or she be punished? Important to this process are the

ideas of separation, that is, putting people in prison or other placements outside the

family and community, and labeling or stigmatization, that is, giving people

identifications like parolee, probationer, felon, ex-con, prisoner, and even defendant.

The vision of retributive justice is to create a safe community.

Restorative Justice

Restorative Justice is based on a balanced focus on the offender, victim, and

community. The values, according to each participant, are: (a) the offender, apology or

shaming and reintegration, (b) the victim, the harm and opportunity for forgiveness,

and (c) the community, relationships.

Outcomes and measurements for restorative justice programs, based on each

core value are:

The offender:

Apology -- either oral or written, recognizing responsibility and not seeing oneself

as a victim and realizing and acknowledging the harm suffered by the victim.

Reintegration -- earning his or her place back in the community, particularly

through the action plan developed under the healing the harm process.

The victim:

Harm -- assessing what harm was done, developing a case plan to repair the harm,

and creating an action plan for those responsible for healing and repairing the harm.

Forgiveness -- the opportunity is extended for the victim to accept an apology from

the offender and to extend forgiveness.

The community

Relationships -- healing broken relationships and creating new relationships.

The vision of restorative justice is creating peace in the community. This visions

differs from the retributive justice focus on safety, leading to separating undesirable

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people, like criminals, from the community, usually by placing them in prison. The

result is those people who are different and live on the margins of society are the people

primarily sent to prison. Those people include the homeless, mentally handicapped,

poor, and minorities. The focus on creating peace realizes offenders are part of the

community and in most cases will return to the community if incarcerated. The

community of the offender includes family, friends, and work relationships. Those

relationships provide the environment for developing a sense of social conscience,

awareness of how one’s actions affect other people, and a desire to be a positive

member of the community.

Conclusions

Restorative justice in the juvenile justice system was identified as a major trend

in the “Report on Trends in the State Courts, 1996-97.” If courts adopt restorative

justice concepts as an alternative to the traditional retributive justice system and

implement a more balanced approach towards justice, communities will become

involved in the courts, and confidence in the criminal justice system will grow.

We can learn more about restorative justice by studying the New Zealand model.

With a thorough understanding of the New Zealand model, the judiciary and court

managers can adopt new shared values in our local judicial systems regarding the roles

of victims, offenders, and communities. Further research is needed to address three key

areas:

1. Communicating the value of restorative justice to the judiciary in order to raise the

respect for the process beyond minor cases.

2. Changing the mind-set of the courts from offender oriented to offender, victim, and

community oriented.

3. Altering the focus of the courts from being in-bred and geared toward protecting

and promoting self-interests, which are dedicated legal procedure, practice, and

tradition, to including the best interests of the community.

The benefits of adopting restorative justice practices to judges and trial court and

probation managers include:

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1. Victims and the community can become more involved in the court process.

2. By using such practices as restitution, community service, mediation, family group

conferencing, and victim impact panels consistent with restorative justice values,

studies indicate recidivism decreases.

3. Victims are given choices and a sense of control, which decrease fear. As a result of

utilizing restorative justice processes, victims and offenders see the system as fairer

and are overall more satisfied.

4. A reduction in caseload is noted in some studies, particularly where all or most

cases are referred to a variety of restorative justice processes.

5. Plea negotiations are enhanced by options, reducing court time.

6. Victim advocacy is politically strong currently and can aid in changing the judicial

system.

7. Restorative justice offers a commonality of values for justice professionals

committed to improve the criminal justice system.

8. Payment of restitution is completed more often using restorative justice approaches.

To learn more about restorative justice, I recommend the following: “Changing

Lenses,” a book by Howard Zehr; “Restoring Justice,” a videotape that can be ordered

by calling 800/524-2612 and requesting PDS #72-630-96-720; and my web site at

www.restorativejustice.com.

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References

Bazemore, G. (1997). The “community” in community justice: Issues, themes, and

questions for the new neighborhood sanctioning methods. The Justice System Journal,

19(2). Williamsburg, VA: National Center for State Courts.

Bazemore G. & Pranis K. (1998, February). Restorative justice conference.

Denver, CO: Colorado Probation Department.

Braithwaite, J. (1989). Crime, shame and reintegration. Cambridge, England:

Cambridge University Press.

Colorado Probation Services, (1997). Statement of common grounds. Denver, CO:

State Court Administrator’s Office.

Doolan, M. (1993). Youth justice - Legislation and practice. In Brown, B. &

McElrea, F., The youth court in New Zealand: A new model of justice, (pp. 17-29).

Auckland, New Zealand: Legal Research Foundation.

Feinblatt, J. & Berman, G., (1997, November). Responding to the community:

Principles for planning and creating a community court. Bureau of Justice Assistance

Bulletin. Washington, D.C.: U.S. Department of Justice.

Marshall, T. (1997, March 20). Seeking the whole justice. Repairing the damage:

Restorative justice in action. Paper presented at the ISTD Conference.

McElrea, F. (1996). The New Zealand youth court: A model for use with adults.

In Galaway, B. & Hudson, J. (Eds.), Restorative justice: International perspectives, (pp.

69-83). Monsey, NY: Criminal Justice Press.

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Moore, L. (1996, Fall). Educational program summaries: Purposes of courts and

the delivery of justice. The Court Manager, 11(4). Williamsburg, VA: the National

Association for Court Management.

Mika H. & Zehr, H. (1997). Restorative justice signposts. Akron, PA: Mennonite

Central Committee.

National Center for State Courts (1998, Winter). NCSC tracks state court trends

for 1997. Center Court 3(1). Williamsburg, VA.

National Institute of Corrections, (1996, March). Community justice: Striving for

safe, secure, and just communities. Louisville, CO: LIS, Inc.

Presbyterian Church (USA) (Producer). (1996, May). Restoring justice [Film].

(Available from Presbyterian Distribution Service, 100 Witherspoon Street, Louisville,

KY 40202-1396.)

Zehr, H. (1995). Changing lenses: A new focus for crime and justice. Scottsdale,

PA: Herald Press.

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